Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR73164
CANTIL-SAKAUYE, J.
After defendant Philip John Owens admitted violating his probation, the trial court imposed the previously suspended state prison sentence and ordered him to pay various fines and fees. On appeal, defendant argues that the $150 general fine imposed without a statutory basis was not authorized under either Health and Safety Code section 11377, subdivision (c) or Penal Code section 672.
Hereafter, undesignated statutory references are to the Health and Safety Code.
We reject defendant’s contention and conclude the fine is authorized under Penal Code section 672. As a separate matter, pursuant to our miscellaneous order No. 2010-002, we conclude that defendant is entitled to additional presentence conduct credits.
We omit the facts of the offenses as not germane to the issues on appeal.
In April 2008, defendant entered a plea of guilty to two felony counts of possession of methamphetamine (§ 11377, subd. (a)), charged as counts V and VI in an amended information, on the condition that he could withdraw his plea if probation was not granted at sentencing. All other charges were dismissed.
In May 2008, the trial court sentenced defendant, in accordance with his plea, to two years eight months in state prison (the midterm on count V and one-third the midterm on count VI), suspended execution of sentence, and imposed three years’ probation with various terms and conditions. The order granting probation included various fees and fines as recommended by probation.
In 2009, defendant admitted a violation of his probation after a petition was filed alleging that he failed to keep in contact with his probation officer. The trial court sustained the petition and referred the matter to the probation department for a supplemental report.
At sentencing, the trial court denied further probation and imposed sentence as follows: “The Court at this time commits the Defendant to State Prison for two years, eight months, with credit for 319 days: 213 actual, 106 conduct credits. [¶] The fines and fees, including their breakdown, are incorporated into the judgment as recommended [in the probation report].” Included within the supplemental probation report is a document entitled “Recommended Financial Terms” and it contains a breakdown of the recommended fines and fees.
The abstract of judgment, filed August 26, 2009, includes a section entitled “Other orders.” This section incorporates an attachment to the abstract entitled “Recommended Financial Terms.” This is the same document that was attached to the supplemental probation report.
The first portion of the document, entitled “Recommended Financial Terms, ” contains the $150 fine at issue, along with associated surcharges, fees and penalties. However, unlike the other fines and fees, no statutory authorization is provided for the $150 fine. Without alteration, this portion reads as follows:
“Count V & VI: 11377(a) H&S, a felony. ($150 fine, $30 Court Surcharge [per §1465.76], $75 State Court Facilities Construction Fund [per §70372(a) GC], $150 State Penalty Assessment [per §1464 PC], $105 County Penalty Assessment [per §76000 GC]) $15.00 DNA ID [per 76104.6 GC], $15.00 DNA ID [per 76104.7 GC] = $540 (with credit for $79.91 in payments)”
Defendant challenges the $150 fine as unauthorized.
DISCUSSION
I.
The Validity of the Fine
Defendant correctly asserts that the record does not indicate the authority for the $150 fine. In addressing the two pertinent fine statutes relevant here, he argues that the imposition of the fine under Penal Code section 672 is error because “section 672 is intended to apply only if no fine is available under any other statute and with Health and Safety Code section 11377, subdivision (c), a fine is otherwise available.” And according to defendant, section 11377, subdivision (c), does not authorize the $150 fine either because this provision permits only a $70 fine at maximum.
At times in his briefing, defendant suggests that the “$540 fine” is also unauthorized (not just the $150 fine). This is somewhat misleading. The real and only “fine” at issue in this appeal is the $150 fine. The “$540” amount, as reflected in the recommended financial terms, is an aggregation of the $150 base fine and the associated surcharge and penalties. The surcharge and penalties are all tied to and calculated based on the $150 base fine amount. (See, e.g., Pen. Code, § 1465.7, subd. (a) [imposing a state surcharge of 20 percent on the base fine amount]; Pen. Code, § 1464, subd. (a)(1) [imposing a state penalty in the amount of $10 for every $10 dollars in fines]; Gov. Code, § 70372, subd. (a)(1) [imposing a state court construction penalty in the amount of $5 for every $10 in fines].) It is only because the $150 fine is purportedly unauthorized that defendant takes issue with the aggregate amount of $540. Defendant raises no separate challenge to the surcharge and penalties that, along with the $150 base fine, comprise the $540 figure. Thus, in this appeal, what is really at issue is the $150 fine. If the $150 fine is unauthorized, then, by extension, the aggregate amount of $540 is also unauthorized.
Section 11377, subdivision (c) provides: “In addition to any fine assessed under subdivision (b), the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a), with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.” Oddly, subdivision (b) does not actually provide for any fine. (People v. Clark (1992) 7 Cal.App.4th 1041, 1045-1046 (Clark) [observing the same].)
In response, the People contend that a $70 fine pursuant to section 11377, subdivision (c), may be imposed in addition to any other fine a court may impose under the law. Moreover, although conceding that no authority was cited for the $150 fine, the People argue that the fine is justified, in full, under Penal Code section 672. The People contend that “[i]t can be reasonably deduced that the $150 fine was a penal fine (Pen. Code, § 672) to which the court added penalty assessments and surcharges.” The People have the better argument.
The People contend that defendant forfeited his challenge to the fine because he did not raise it below. (People v. Scott (1994) 9 Cal.4th 331; People v. Walker (1991) 54 Cal.3d 1013.) We decline to consider the forfeiture issue and proceed to the merits. (People v. Fraser (2006) 138 Cal.App.4th 1430, 1452.)
Aside from section 11377, subdivision (c), and Penal Code section 672, the parties do not discuss, or argue for or against, the applicability of another fine provision.
From the record, it is clear that the trial court imposed the $150 fine for defendant’s felony violations of section 11377, subdivision (a), as alleged in counts V and VI. Section 672 of the Penal Code provides: “Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.” Penal Code section 672 is a “catchall” fine provision (People v. Breazell (2002) 104 Cal.App.4th 298, 304 (Breazell)), which applies only when no other fine is “prescribed” for the offense (People v. Allen (2001) 88 Cal.App.4th 986, 999; People v. Martinez (1998) 65 Cal.App.4th 1511, 1518, fn. 2 (Martinez)). Penal Code section 672 covers “all crimes, whether defined in the Penal Code or elsewhere.” (Clark, supra, 7 Cal.App.4th at p. 1045.)
Here, the fine for defendant’s offense is not prescribed in section 11377, subdivision (c), so as to preclude a fine under Penal Code section 672. (Clark, supra, 7 Cal.App.4th at pp. 1045-1046.) The $70 fine authorized under section 11377, subdivision (c), which is for AIDS education programs, “is expressly intended to be additional to any fines the court may impose for the specified offenses.” (Clark, supra, at p. 1046, italics added.) Accordingly, in Clark, the court concluded that a trial court may impose a fine under section 11377, subdivision (c), in addition to a fine under Penal Code section 672. (Clark, supra, at pp. 1045-1046; accord, Martinez, supra, 65 Cal.App.4th at p. 1518, fn. 2 [stating “[s]ection 672 authorizes a fine where none is otherwise prescribed” and agreeing with Clark that “[a] trial court may assess a fine under [Penal Code] section 672 and the $70 fine provided for in Health and Safety Code section 11377, subdivision (c)”, italics omitted].) Defendant does not address the Clark case.
In support of his contention that Penal Code section 672 is inapplicable, defendant relies on certain language in Breazell. Defendant’s reliance on Breazell is misplaced.
In Breazell, the defendant pled guilty to possessing cocaine base for sale, a violation of section 11351.5. (Breazell, supra, 104 Cal.App.4th at p. 301.) The trial court imposed a fine under Health and Safety Code section 11372 and another fine under Penal Code section 672. (Breazell, supra, at p. 302.) On appeal, the parties disputed whether a fine could be imposed under Penal Code section 672 when the trial court also imposed a fine under section 11372. (Breazell, supra, at p. 302.) The court held: “Since a fine pursuant to [Penal Code] section 672 may be imposed for offenses not defined in the Penal Code, it would be absurd to allow this provision, intended to impose a fine only when no other statute does so, to result in multiple fines simply because the offense and the associated fine are not defined in the Penal Code. The language of the statute and its history establish that the Legislature did not intend such a result. Accordingly, the trial court erred in imposing a fine pursuant to [Penal Code] section 672 when a fine also was imposed pursuant to Health and Safety Code section 11372.” (Id. at p. 304.)
Section 11372, subdivision (a) provides: “In addition to the term of imprisonment provided by law for persons convicted of violating Section 11350, 11351, 11351.5, 11352, 11353, 11355, 11359, 11360, or 11361, the trial court may impose a fine not exceeding twenty thousand dollars ($20,000) for each offense. In no event shall a fine be levied in lieu of or in substitution for the term of imprisonment provided by law for any of these offenses.” Subdivisions (b) to (d) of section 11372 authorize larger fines in certain circumstances. (See§ 11372, subds. (b)-(d), & (e).)
Breazell is distinguishable. Unlike Breazell, this case does not concern the imposition of two fines, one under Penal Code section 672 and another under section 11372. The fine provision at issue here is section 11377, subdivision (c), not section 11372, and there is no corresponding concern about the prospect of “multiple fines simply because the offense and the associated fine are not defined in the Penal Code.” (Breazell, supra, 104 Cal.App.4th at p. 304.) Moreover, as stated ante, the prospect of multiple fines exists because the fine under section 11377, subdivision (c), “is expressly intended to be additional to any fines the court may impose for the specified offenses.” (Clark, supra, 7 Cal.App.4th at p. 1046.)
Defendant selectively quotes one sentence from Breazell in which the court stated that the phrase in Penal Code section 672 which reads, “in relation to which no fine is herein prescribed” was “meant to ensure that a fine pursuant to Penal Code section 672 would not be imposed if another statute authorized a fine for the offense.” (Breazell, supra, 104 Cal.App.4th at p. 304, italics added.) According to defendant, because a $70 fine is available or authorized for his offense under section 11377, subdivision (c), this precludes a fine under Penal Code section 672. Defendant’s argument is misguided.
Elsewhere in the opinion, the court stated that “[t]he language used in [Penal Code] section 672 demonstrates that it was meant to provide a fine for offenses for which another statute did not impose a fine.” (Breazell, supra, 104 Cal.App.4th at p. 304, italics added.)
What matters, however, is not whether another statute merely authorizes some type of fine for the offense at issue, but whether the fine for that offense is prescribed in another statute so as to preclude a fine under Penal Code section 672. Here, section 11377, subdivision (c), authorizes a $70 fine for the offenses to which it applies, including defendant’s offense. It does not function to prescribe the fine for these offenses so as to foreclose a fine under Penal Code section 672. (Clark, supra, 7 Cal.App.4th at pp. 1045-1046; Martinez, supra, 65 Cal.App.4th at p. 1518, fn. 2.)
Under Clark, a trial court may impose a fine under section 11377, subdivision (c), in addition to a fine under Penal Code section 672. Defendant’s argument that a fine under Penal Code section 672 is unavailable lacks merit. (Clark, supra, 7 Cal.App.4th at pp. 1045-1046.)
In this case, the trial court could have issued fines under both Penal Code section 672 and section 11377, subdivision (c). Only the former would support a $150 fine, however, as the latter has a $70 maximum. We conclude the trial court imposed the $150 fine under Penal Code section 672.
To begin with, “we presume... that the court knows and applies the correct statutory and case law.” (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Thus, the trial court, aware of the $70 maximum in section 11377, subdivision (c), did not use this statute to impose a $150 fine against defendant. In accord with Clark and Martinez, and consistent with these cases, the court properly imposed a $150 fine under Penal Code section 672.
A close review of the recommended financial terms affirms our conclusion. As the fees and fines appear in the probation report and in the abstract of judgment, the recommended financial terms contain a section entitled “Aids Education, ” which is separate from the section that contains the $150 fine. This “Aids Education” portion specifically lists, among other statutes, “11377(c) H&S.” There is a designated space in the recommended financial terms where, if a fine under “11377(c) H&S” were imposed, a monetary amount would appear. This space is blank thus confirming that the trial court declined to impose any fine under section 11377, subdivision (c).
A fine under section 11377, subdivision (c), is discretionary. (Clark, supra, 7 Cal.App.4th at p. 1046.)
The court applied the correct statutory and case law, in imposing the $150 fine under Penal Code section 672, not section 11377, subdivision (c).
II.
Presentence Conduct Credit
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence conduct credits. Had Penal Code section 4019 remained the applicable statute, we would conclude that the January 25, 2010, amendments apply retroactively to defendant’s appeal, which was pending as of that date. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].)”
On September 28, 2010, however, the Legislature enacted Senate Bill No. 76, which amended Penal Code section 2933 regarding presentence conduct credits for defendants sentenced to state prison. This amendment, effective September 28, 2010, gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Pen. Code, § 2933, subd. (e)(1)-(3), added by Stats. 2010, ch. 426, § 1), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 when the person served an odd number of days in presentence custody. Senate Bill No. 76 also eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (See Pen. Code, § 2933, subd. (e)(1)-(3), added by Stats. 2010, ch. 426, § 1; see Pen. Code, former § 4019, subd. (e), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
The amendment to Penal Code section 2933, effective September 28, 2010, which now supersedes the Penal Code section 4019 amendments effective January 25, 2010, does not state it is to be applied prospectively only. Consequently, for the reasons we would conclude that the January 25, 2010, amendments to Penal Code section 4019 apply in this case, we similarly conclude that the rate now provided in Penal Code section 2933 applies retroactively to all appeals, like defendant’s, pending as of September 28, 2010.
Senate Bill No. 76 also amends Penal Code section 4019 to reduce the amount of presentence conduct credits earned by qualifying prisoners. With the enactment of Senate Bill No. 76, the calculation of such credits is now based on the rate that existed prior to Senate Bill No. 3X 18, which increased the rate. (Pen. Code, § 4019, subds. (b), (c) & (f), as amended by Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010.) However, this amendment applies prospectively only, i.e., only to sentences imposed on or after September 28, 2010. (Pen. Code, § 4019, subd. (g).)
As defendant does not have a present or prior conviction for a “serious” or “violent” felony and is not subject to registration as a sex offender, he is entitled to the presentence conduct credits now provided for in Penal Code section 2933, subdivision (e). (Pen. Code, § 2933, subd. (e)(1) & (3), added by Stats. 2010, ch. 426, § 1.) Consequently, defendant, having served 213 days in actual presentence custody, is entitled to 213 days’ conduct credit. This gives defendant a total of 426 days’ credit, rather than the 319 days previously awarded.
DISPOSITION
We reject defendant’s challenge to the fine. The judgment is modified to award defendant 213 days’ conduct credit for a total of 426 days’ presentence custody credits. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect this modification and to forward a certified copy of the same to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, Acting P. J., BUTZ, J.
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.