Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC801843
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Julian Sandoval appeals from the denial of his motion to suppress pursuant to Penal Code section 1538.5 following his guilty pleas to numerous sexual offenses with V., a child under 14. He argues that all police observations of V., her statements to police, defendant’s statements to police, and physical evidence found in his room must be suppressed as the fruit of unlawful police searches and seizures. We will affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Statement Of The Case
Defendant Sandoval was charged by information with six counts of lewd acts consisting of substantial sexual conduct with a child under the age of 14 (§ 288, subd. (a); 1203.066, subd. (a)(8); one count of furnishing methamphetamine to a minor at least four years younger than defendant (Health & Saf. Code, §§ 11380, 11380.1, subd. (a)(3)); two counts of lewd acts with a child 14 or 15 years old and more than 10 years younger than defendant (§ 288, subd. (c)(1)); one count of sodomy with a child under the age of 14 (§ 286, subd. (c)(1)); and two counts of oral copulation consisting of substantial sexual conduct with a child under the age of 14 and more than 10 years younger than defendant (§ 288a, subd. (c)(1), 1203.006, subd. (a)(8)). Following denial of his motions to suppress evidence and to dismiss the information on Fourth Amendment grounds pursuant to sections 1538.5 and 995, defendant pleaded guilty as charged. The court sentenced defendant to a prison term of eight years, and imposed a criminal conviction assessment of $360 ($30 x 12 counts). On appeal, defendant renews his Fourth Amendment claims and challenges the assessment as violative of ex post facto principles.
Defendant’s first motion to suppress was heard in conjunction with the preliminary hearing. After it was denied and he was held to answer, he renewed his motion under section 1538.5, subdivision (i) and also challenged the prior ruling pursuant to section 995. No additional evidence was adduced after the preliminary hearing. On appeal, he challenges only the denial of his motion to suppress under section 1538.5.
The facts are drawn from the preliminary hearing transcript of October 27, 2008.
On April 7, 2008, Officer Pham, a fraud detective for the San Jose Police Department, took a report of vehicle burglary at Oakridge Mall. A witness saw two subjects pull up alongside the targeted vehicle in their car, rev the engine loudly, and break the targeted car’s window. The witness gave the police a description of the suspects’ car and a partial license plate. Armed with that information, the police had located defendant’s address on Sanborn Avenue in San Jose.
Later that day at 9:30 a.m., Officers Pham, Hardin, Valencia and Berget (a trainee paired with training officer Valencia), along with several other officers and trainees, converged on defendant’s house. Half to two-thirds of the officers were in full uniform. Parked in front of the house was a black Camaro matching the description of the suspects’ car. It had large, modified exhaust pipes capable of amplifying revving sounds from the engine.
A group of five or six officers including Berget, Valencia, Pham, and Hardin, approached the house. Two uniformed officers knocked on the front door. An elderly woman, defendant’s grandmother, opened it. One of the officers asked for defendant by name, and asked if he was at home. The officers asked where defendant was located in the house and his grandmother “stepped back after opening the door and pointed towards the hallway, and she stated [in English] that he was in his room.”
While Hardin stayed in the area of the front door, in the living room, the other officers went to the doorway of a room in the hallway. Two officers knocked on that door several times. They identified themselves as San Jose police officers and asked “if the person could come to the door.” Defendant opened the door and came out of the room wearing only boxer shorts. Defendant closed the door with his hand, locking it, and then stepped away from it.
According to Hardin, at that point “somebody placed handcuffs on [defendant] and basically handed them [sic] down the line to me, and then I took control of him and had him sit on the couch.” However, according to Berget, a police officer talked with defendant and asked him a few questions, including why he had locked the door behind him. Defendant gave no answer. The police also asked defendant if there was anyone else in the room and defendant said “yes.” Eventually, defendant was handcuffed and sat on the couch in the living room.
As a result of defendant’s responses, the officers knocked on the door a couple more times. “They were asking the person to come out of the room.” Hardin became aware that there was another occupant in the room when he heard the other officers “in a loud voice ask whoever else was in that room to come open the door.” Hardin’s concern for “officer safety was a bit heightened. I’m not sure if there was another threat coming from that room, so I stayed focused on the hallway.” According to Berget, a female voice stated she was coming out but needed time to put on clothes. Eventually, “a younger looking female” came out of the room wearing a white T-shirt and a small towel wrapped around her waist.
In his police report, Berget wrote that “the police knocked multiple times demanding entry.” On cross examination, Berget agreed with defense counsel that the officers demanded entry into that room, “[f]or officer safety reasons, yes, sir.”
At some point, the officers allowed her to go into the bathroom and put on some clothing.
Officer Berget started asking the girl some questions. At first, the conversation took place in the hallway, two or three feet away from the door. Later, they had a lengthier conversation in the grandmother’s room. The girl told Berget her name and that her birthday was February 24, 1994. She said she was in the bedroom sleeping naked; that defendant was her boyfriend; that she been having a sexual relationship with defendant since June of 2007 and that they had sex a couple of times a week; that the last time she had had sex with defendant was at 4:00 that morning; and that she had also smoked methamphetamine at 4:00 a.m. Hardin asked V. “if there was [sic] any articles that he or she had used that may contain fluid” to substantiate her claim of sexual intercourse. She helped the police find those items by “describ[ing] what she was wearing and where the act had taken place and what she had either on or underneath her during intercourse.” With her assistance, the police located those items.
In his police report, Berget wrote that V. and defendant had had sex “a couple of times, ” because “[i]nitially, that’s what she had stated, ... but later throughout the conversation, she had explained that it was more than a couple of times.”
While defendant was handcuffed, but not under arrest, Hardin noticed that defendant displayed physical symptoms of being under the influence of methamphetamine. Hardin “told him he was obviously high, and... asked him where the rest of his meth was, and he told me it was in his room. And I asked him if he’d show me. He said, yeah. He jumped off the couch. I almost had to get control of him because he was so eager to virtually run into the room, and there were other officers in there and I had to hold him back so he [sic] wouldn’t be surprised by his entering into the room again.” Because he was handcuffed, defendant motioned with his shoulders to a prescription bottle containing a vial and located against the south wall on top of something like a toolbox. Hardin looked inside the vial and saw a “little rock that was white, it was kind of an off-white and looked like it was methamphetamine.” Defendant also motioned towards a glass smoking pipe containing residue and located in a tissue on his night stand next to the bed.
On recross examination, Officer Hardin corrected himself and testified: “I meant to say in case there were any officers in the room. It’s merely a defensive officer safety thing that I did not want a bad situation to arise.”
Approximately an hour later, at 10:45 a.m., V. was transported to the police station by Berget and Valencia. After speaking with a detective there, V. was taken to Valley Medical Center for a sexual assault exam, to which she refused to submit. She also refused to provide her clothes to the police for collection of DNA evidence. She said she “was afraid for her boyfriend. She wanted to make sure he wasn’t in harms way.”
Detective Alexander, a sexual assault detective for the San Jose Police Department, interviewed V. at the police station. She told him that she began having a sexual relationship with defendant in September, not June, of 2007. She said they had engaged in sexual intercourse approximately 10 times and that defendant had orally copulated her three times. She stated that at 4:00 that morning when they had had unprotected sexual intercourse, defendant had ejaculated on top of her and had cleaned himself with a green towel. She admitted using methamphetamine since she was 12 years old and said she had last used it at 4:00 a.m. prior to having intercourse. She stated that defendant gave her the methamphetamine.
Subsequently, defendant waived his Miranda rights and told Detective Alexander that he was 26 years old, that he had had sex with V. approximately 15 times per month since the start of their relationship in November of 2007, that he had orally copulated her twice, and had had anal sex with her once. He confirmed that he and V. had used methamphetamine before having sex at 4:00 that morning.
Miranda v. Arizona (1966) 384 U.S. 436.
Detective Alexander asked defendant to sign a consent to search form. He was looking for evidence that would support the existence of a sexual relationship between defendant and V., in particular the green towel and a pair of pink underwear V. said she had worn. Defendant agreed to sign the consent form, but later withdrew his consent when the police returned with him to the house. As far as Detective Alexander knew, the house was not searched after defendant withdrew his consent.
Discussion
I. The Motion to Suppress Pursuant to Section 1538.5 Was Properly Denied
Defendant argues that the physical evidence seized from his bedroom, and his and V.’s statements, must be suppressed as fruit of the poisonous tree (Wong Sun v. United States (1963) 371 U.S. 471) because: (1) by handcuffing him and demanding entry into his locked room, the police exceeded the scope of the consent to enter given by defendant’s grandmother; (2) defendant’s consent was involuntary because it was coerced and the result of an illegal detention or arrest; (3) the discovery of V. was the product of an unlawful search; and (4) the search of defendant’s room was not justified as a protective sweep because it was objectively unreasonable for police to believe that a female inside the locked room presented a threat to them. The People respond that: (1) the police did not exceed the scope of the grandmother’s consent; (2) defendant’s consent to the search of his bedroom was valid and not the product of an illegal detention or arrest; (3) V.’s consent to the police entry into the room is irrelevant, because it was given in response to an assertion of lawful authority and, in any event, the room was not searched until five minutes after V. left it; and (4) the search of defendant’s room was justifiable as a protective sweep under Maryland v. Buie (1990) 494 U.S. 325 (Buie)and People v. Celis (2004) 33 Cal.4th 667 (Celis).
Before turning to the merits of defendant’s arguments, we set forth the guiding principles of law that inform our analysis of the issues.
Applicable Principles of Law
Standard of Review
Where, as here, a suppression motion is made before a magistrate judge in conjunction with a preliminary hearing, the magistrate acts as the trier of fact. (People v. Laiwa (1983) 34 Cal.3d 711, 718 (Laiwa), superseded by statute on another ground as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.)
Moreover, where, as here, the matter is raised a second time in the superior court on the basis of the preliminary hearing transcript, the superior court is bound by the magistrate’s factual findings and must accept them so long as they are supported by substantial evidence. (§ 1538.5, subd. (i); People v. v. Ramsey (1988) 203 Cal.App.3d 671, 679.) In such circumstances, the superior court acts as a reviewing court. In performing this function, the court must respect the magistrate’s ability “to judge credibility, resolve conflicts, weigh evidence, and draw inferences....” It must also draw “all presumptions in favor of the magistrate’s factual” findings and uphold “them if they are supported by substantial evidence.” (People v. Bishop (1993) 14 Cal.App.4th 203, 214.)
On appeal from the superior court’s ruling, we are similarly bound by the magistrate’s findings. (People v. Trujillo, supra, 217 Cal.App.3d at p. 1224.) This court disregards the ruling of the superior court and directly reviews the decision of the magistrate. Thus, we review the magistrate’s factual findings to determine whether they are supported by substantial evidence, but independently review the magistrate’s determination that the search did not violate the Fourth Amendment. (Laiwa, supra, 34 Cal.3d at p. 718.)
Furthermore, the reasonableness of the search or seizure is measured against federal constitutional standards. (People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8; People v. Troyer (2011) 51 Cal.4th 599, 606.) Only evidence that is the product of an unreasonable search and seizure in violation of federal standards shall be suppressed. (In re Lance W. (1985) 37 Cal.3d 873, 890.)
Consent
Under the Fourth Amendment, a warrantless search is per se unreasonable unless it falls within an established exception to the warrant requirement, such as voluntary consent obtained from a person authorized to give it. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181; Mincey v. Arizona (1978) 437 U.S. 385, 390; United States v. Matlock (1974) 415 U.S. 164, 169; People v. Robles (2000) 23 Cal.4th 789, 795.) The prosecution bears the burden of showing by a preponderance of the evidence that police conducted the search with voluntary consent. (Bumper v. North Carolina (1968) 391 U.S. 543, 548-549; United States v. Matlock, supra, 415 U.S. at pp. 177-178, fn. 14; People v. Aguilar (1996) 48 Cal.App.4th 632, 639.) “ ‘[C]onsent must be unequivocal, specific, and freely and intelligently given’ ” and is invalid if given “ ‘in response to any express or implied assertion of authority.’ ” (People v. Bailey (1985) 176 Cal.App.3d 402, 404-405.) The voluntariness of consent is a question of fact, to be determined in light of all the circumstances. (People v. James (1977) 19 Cal.3d 99, 106.) The appellate court views the record in the light most favorable to the trial court’s ruling and defers to its express or implied findings of historical fact, including a finding of voluntary consent, if the findings are supported by substantial evidence. (People v. Aguilar, supra, 48 Cal.App.4th at p. 639; People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
Protective Sweep
“A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” (Buie, supra, 494 U.S. at p. 327.) “[A] protective sweep, as described by the high court in Buie, supra, 494 U.S. 325, can be justified by a standard lower than probable cause, namely, reasonable suspicion. (Id. at p. 327.)” (Celis, supra, 33 Cal.4th at p. 680.) A protective sweep is permissible when the police are lawfully inside a house for some reason other than to arrest a suspect, such as a probation search (People v. Ledesma (2003) 106 Cal.App.4th 857) or a consent search. (United States v. Gould (5th Cir. 2004) 364 F.3d 578.)
Scope of Grandmother’s Consent
Defendant does not contest that defendant’s grandmother, by her words and gestures, gave police permission to enter the house to question defendant. Rather, he argues that the police exceeded the scope of that consent when they “seized [defendant] without questioning him” and “further exceeded the scope of any implied consent when they demanded entry into appellant’s locked bedroom and thereafter searched the room.”
The magistrate expressly found that “[t]he officers did have valid consent to enter the house by the grandmother, ” but made no express finding about the scope of the grandmother’s consent. However, the magistrate’s ruling gives rise, at least, to an implied finding that the police did not exceed the scope of defendant’s grandmother’s consent to enter. The record amply supports such an implied finding.
“[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” (Brigham City v. Stuart (2006) 547 U.S. 398, 403.) Here, the police acted reasonably in demanding that defendant come out of the room to speak with them, rather than conducting their investigation of the car burglary by way of a shouting match through a closed door.
Second, and contrary to defendant’s assertion, substantial evidence supports the view that the police did not handcuff defendant before questioning him. Officer Berget testified that defendant stepped out of the room “in boxers, and the next thing I remember seeing is the police officer just talking with him and asking him a few questions.” Defendant then closed the door behind him, and took a few steps away from the now-locked door. When Officer Berget was asked, “Did you see him get handcuffed at any point?” he answered, “Eventually, yes.” Although Officer Hardin testified that he believed the first thing that happened after defendant came out of the room was that “somebody placed handcuffs on him, ” the magistrate was not required to credit that testimony and impliedly did not do so. In fact, the court stated that it found Officer Berget’s testimony “to be credible[] in particular.” Where, as here, the facts found by the court are based on credibility determinations and supported by substantial evidence, we are not empowered to substitute a different view of the facts.
Finally, placing a suspect in handcuffs does not necessarily transform a detention into an arrest. “ ‘[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.’ ” (Celis, supra, 33 Cal.4th 667, 674-675.) Here, the circumstances included the fact that an officer asked defendant why he had locked the door behind him, to which defendant gave no answer, and whether there was anyone else in the room, to which defendant answered “yes.” The police already had ample reason to investigate defendant’s possible participation in a felony car burglary which, they knew, involved a confederate and an instrument capable of breaking a car window. At the house, the police observed defendant’s suspicious behavior in locking the door to his room behind him and refusing to explain why he had done so. Additionally, the police were confronted with new information that a person was inside the locked room. In our view, the police acted reasonably in handcuffing defendant and leading him away from the locked door while they investigated a rapidly evolving situation. The police had not exceeded the duration, scope, and purpose of a reasonable investigative detention when Officer Hardin noticed that defendant was under the influence of a controlled substance, and reasonably began to investigate the possibility that defendant was in possession of more drugs.
In re Johnny V. (1978) 85 Cal.App.3d 120 (Johnny V.) and People v. Superior Court (Arketa)(1970) 10 Cal.App.3d 122 (Arketa), on which defendant relies, are distinguishable. In Johnny V., the police gained consent to enter the house for the purpose of talking to the minor, but in fact went there to arrest him and did so. In Arketa, the police saw a burglary suspect with a crowbar run towards a house. They received permission to enter the house to look for the suspect, but instead proceeded to search for the crowbar. Here, by contrast, the police gained consent to enter to speak with defendant, did speak with defendant, and arrested him later only after developing probable cause to do so. We conclude that placing defendant in handcuffs and removing him to the front room while investigating the car burglary, the identity of the person in the locked bedroom, and defendant’s state of drug intoxication, did not transform a permissible investigative detention into a de facto arrest.
Defendant’s Consent to Search the Bedroom
Defendant contends that his consent to the search of his bedroom for drugs was the coerced product of an illegal arrest “because when the officers handcuffed [defendant] and placed him on a couch, he was unarmed, not suspected of a violent crime, wearing only boxer shorts and was surrounded by 5-6 armed police officers. Under these circumstances, [defendant] was clearly arrested and not detained.” We disagree. As discussed above, defendant’s detention was lawful. Officer Hardin testified that he asked defendant “where the rest of his meth was, and he told me it was in his room.” When asked if he would show Hardin where it was, defendant eagerly jumped off the couch and ran to the room. He motioned with his shoulders where the officer could find the drugs. No other witness contradicted Officer Hardin’s testimony. Under these circumstances, the magistrate was entitled to find, and expressly did find, that defendant’s consent to search the room was voluntary. The court’s factual finding of voluntary consent, supported as it is by substantial evidence, is binding on us. Therefore, we find that the trial court correctly declined to suppress the controlled substances discovered in the search of defendant’s room.
Legality of Police Demands for V. to Come out of the Room
Defendant argues that the police officers’ loud demands for entry into the room vitiated any consent to enter on V.’s part because she “only opened the door in submission to authority.” He also argues that merely looking inside the room and seeing V. constituted a “Fourth Amendment search” that was not justifiable as a protective sweep. (Kyllo v. United States (2001) 533 U.S. 27 (Kyllo) [remote thermal imaging measurements of emanations from a house constitute an unlawful search]. But see California v. Ciraolo (1986) 476 U.S. 207 [aerial surveillance of private homes and surrounding areas does not constitute a search.])
The Attorney General does not seek to justify V.’s decision to open the door and come out of the room as voluntary. The magistrate made no finding on that issue. Instead, she argues that the police discovered V. without intruding on defendant’s reasonable expectation of privacy in his room. “At most, they ‘demanded that she come out.’... They did not physically enter or even peer into the room until five minutes after [V.] left it.... [Defendant] had no reasonable expectation in [V.] or the right to complain about her seizure.” The Attorney General also argues that entry into defendant’s room was justifiable as a protective sweep.
The magistrate found that after defendant informed the police that there was another person in the locked room, the police “then told the person in the room to come out. A female voice answered and said she was coming out, and then [V.] did exit the room. [¶]... [¶] [T]he officers did not enter the room at that time or break into the room or threaten to break into the room but asked and told the defendant.... [T]hey did demand that she come out. So rather than enter the room, they did demand that she come out, and then she did exit the room....” “[T]he intrusion here was telling the person inside to come out.” Adopting the magistrate’s factual finding, the trial court observed that “the police demanded that [V.] open the door.... They did not... order the door to be opened to gain visual access to the bedroom. They ordered the door to be opened to figure out who was in the room; not knowing at that point that it was female, let alone a 14-year-old. [¶] So, the facts demonstrate that the police intended only to see [V.], but no officers entered the bedroom until at least five minutes after [V.] appeared. So, there was no search. [¶] But even if there had been a search in this matter, ... the officers’ actions were lawful; because if it had been a protective sweep, that protective sweep would have been justified, because the police did not know who was in the room, and the defendant acted suspiciously when he entered the hallway to talk to the officers, specifically by surreptitiously locking the door behind him.”
“[A] Fourth Amendment search does not occur—even when the explicitly protected location of a house is concerned—unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search, ’ and ‘society [is] willing to recognize that expectation as reasonable.’ ” (Kyllo, supra, 533 U.S. at p. 33.) In this case, the object of the challenged search is not defendant’s room, per se, but rather V. herself. As the trial court trenchantly observed: “The defendant may have had an expectation of privacy in the room, but it was [V.] that opened the door. And it’s really [V.] that you are attempting to suppress; because when this 14-year-old girl, who’s half-dressed, opens the door, then the officers are focused on her and what she has to say.”
Defendant’s contentions are not well taken, for several reasons. First, at issue here is no more than the naked-eye, visual observation of V. The United States Supreme Court has held that such “visual observation is no ‘search’ at all.” (Kyllo, supra, 533 U.S. at p. 32.) Second, V. was both a victim of, and witness to, crimes against her person and, therefore, defendant had no expectation of privacy in V.’s person. As the United States Supreme Court observed in the context excluding live-witness testimony from the reach of the exclusionary rule, “[w]itnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward... of their own volition.... [¶] ‘The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.’ ” (U.S. v. Ceccolini (1978) 435 U.S. 268, 276-277.)
Finally, the police demands that V. come out of the room were justified by the protective sweep doctrine. In this case, unlike Celis or Buie, the police actually knew that a person was hiding in defendant’s bedroom because defendant admitted as much. Defendant argues that the police had no basis for believing that V. posed a threat to them, because they could tell from her voice that she was female. However, the police knew that the car burglary they were investigating involved two suspects, and that something had been used to break the car’s window. The police had no reason to know that this female was not the second suspect and that she was not equipped with an instrument capable of inflicting harm. “ ‘When a police officer is confronted with two reasonable competing inferences, one that would justify the search and that another would not, the officer is entitled to rely on the reasonable inference justifying the search.’ ” (People v. Troyer, supra, 51 Cal.4th at p. 613, quoting from State v. Mielke (Wisc. Ct.App. 2002) 653 N.W.2d 316, 319.) We judge the reasonableness of a search not by what it turns up, but by what the police reasonably suspected beforehand.
Once defendant confirmed another person was in the locked room, the protective sweep doctrine came into play and justified the police action in knocking loudly on the bedroom door and demanding that the person inside come out. “[T]he locked bedroom door presented the officers with ‘obvious risks’ to their own safety, risks they could reasonably decide were too great to ignore. [Citation.]” (People v.Troyer, supra, 51 Cal.4th at p. 614 (conc. opn. of Werdegar, J.).) Once V. presented herself, the police were duty-bound to investigate the circumstances under which a partially clothed young girl found herself in a bedroom with an adult male in boxer shorts. In the course of that investigation, the police learned from V. that the room contained incriminating evidence of her sexual liaison with defendant. Inasmuch as the police already had defendant’s valid consent to search the bedroom for drugs, they were also entitled to seize any evidence corroborative of sexual acts that they found in plain view. Thus, the trial court correctly declined to suppress police observations of V., her statements to police, defendant’s statements to police and physical evidence corroborative of sexual activity found in plain view in the room.
In view of this conclusion, we need not and do not reach defendant’s claim that the evidence should be suppressed as fruit of the poisonous tree.
II. Imposition of the Criminal Conviction Assessment Is Not a Violation of the Ex Post Facto Prohibition
Defendant argues that imposition of a criminal conviction assessment of $360 ($30 for each of the 12 counts) pursuant to Government Code section 70373 violates ex post facto principles because he committed the offenses before the statute was enacted. Government Code section 70373 provides in relevant part: “(a)(1) 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.”
Government Code section 70373 went into effect January 1, 2009. The offenses at issue here were committed in 2007 and 2008. Defendant was convicted by plea on May 21, 2009. Thus, although the offenses occurred before the effective date of the statute, his convictions did not.
A statute violates the ex post facto clauses of the state and federal constitutions if it retroactively alters the definition of a crime or increases the punishment for criminal acts. (People v. Alford (2007) 42 Cal.4th 749, 755 (Alford).) Here, the statute obviously does not alter the definition of a crime. The question presented, then, is whether Government Code section 70373 is penal in nature; that is, whether it increases the punishment for a crime.
Numerous recent cases have held that Government Code section 70373 is not penal in nature and may validly be applied to a person whose conviction post-dates the effective date of the statute, even though the commission of the offense pre-dates the effective date of the statute. (People v. Brooks (2009) 175 Cal.App.4th Supp. 1; People v. Castillo (2010)182 Cal.App.4th 1410; People v. Cortez (2010) 189 Cal.App.4th 1436; People v. Davis (2010) 185 Cal.App.4th 998; People v. Knightbent (2010) 186 Cal.App.4th 1105; People v. Mendez (2010) 188 Cal.App.4th 47; People v. Lopez (2010) 188 Cal.App.4th 474.) As the Brooks court explained: “The section 70373(a)(1) assessment is more like the fee approved in Alford [, supra, 42 Cal.4th 749] than the penalty and surcharge invalidated in [People v.] High [(2004) 119 Cal.App.4th 1192] because: [¶] 1. The stated purpose of the section 70373(a)(1) assessment is to ensure and maintain adequate funding for court facilities, not to punish. [¶] 2. It is also part of a broad legislative scheme in which civil fees were also raised to fund courthouse construction. [¶] 3. It is termed an ‘assessment, ’ not a fine or a penalty. [¶] 4. The $30 is larger than the $20 approved in Alford, but still relatively small. [¶] 5. The amount of the assessment is not dependent on the seriousness of the offense. [¶] As with the court security fee upheld in Alford, these factors weigh predominantly in favor of finding the section 70373(a)(1) assessment nonpunitive, and therefore not a prohibited ex post facto law.” (People v. Brooks, supra, 175 Cal.App.4th Supp. 1, 6-7.) Government Code section 70373 is not penal in nature, and therefore imposition of the fee for offenses committed prior to its effective date do not violate the ex post facto clauses of the state or federal Constitutions where, as here, the convictions occurred after the effective date.
Conclusion
Defendant’s Fourth Amendment rights were not violated; the trial court properly denied defendant’s motion to suppress. Imposition of fees pursuant to Government Code section 70373 did not violate the ex post facto clauses of the state or federal Constitutions.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P.J., ELIA, J.