Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F03268
BLEASE, Acting P. J.
Defendant Yia Thao was found guilty by a jury of violating Health and Safety Code sections 11366.5, subdivision (a) (making an enclosed space available for the manufacture, storing, or distribution of a controlled substance for sale) and 11377, subdivision (a) (possession of methamphetamine), and he admitted having served a prior prison term. (Pen. Code, § 667.5, subd. (b).) He was sentenced to state prison for a term of four years eight months.
On appeal, defendant contends the trial court erred by imposing a court facilities assessment pursuant to Government Code section 70373, subdivision (a)(1) (section 70373), because that statute became effective after the date of his offenses. We recently rejected a similar argument in People v. Fleury (2010) 182 Cal.App.4th 1486 and People v. Castillo (2010) 182 Cal.App.4th 1410. We do so again here.
DISCUSSION
Defendant’s offenses were committed in April 2008. Section 70373, which imposes a court facilities assessment on all criminal and traffic convictions, became effective on January 1, 2009. (Stats. 2008, ch. 311, § 6.5.) At defendant’s sentencing in May 2009, the trial court imposed a $60 court facilities assessment pursuant to section 70373, in addition to numerous other fines and assessments. Defendant contends that imposition of the court facilities assessment constituted an improper retroactive application of section 70373. He is mistaken.
A recitation of the facts underlying defendant’s convictions is unnecessary to our analysis and, consequently, has been omitted.
Section 70373, subdivision (a)(1), 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.”
Regarding the constitutionality of retroactively applying sentencing statutes, the federal and state Constitutions prohibit legislation “‘“which makes more burdensome the punishment for a crime, after its commission....”’” (People v. McVickers (1992) 4 Cal.4th 81, 84; see U.S. Const., art. l, § 10 and Cal. Const., art. l, § 9.) Thus, a penalty assessment cannot be imposed retroactively if “the assessment is in fact a penalty.” (People v. Batman (2008) 159 Cal.App.4th 587, 590.)
In People v. Fleury, supra, 182 Cal.App.4th 1486, we concluded that section 70373 could be applied retroactively without running afoul of constitutional proscriptions, analogizing to the California Supreme Court’s retroactivity analysis of similarly worded Penal Code section 1465.8 in People v. Alford (2007) 42 Cal.4th 749 (Alford). Following Alford, we explained that, in determining whether an assessment is a penalty, we consider the Legislature’s intent in this regard and, if the intent is nonpunitive, whether the statute is “‘“so punitive either in purpose or effect as to negate [the Legislature’s] intention....”’” (People v. Fleury, supra, at p. 1490.) Based on the stated objective and language of section 70373, we concluded its purpose is nonpunitive. (Id. at p. 1492.) We also concluded that the statute is not so punitive in purpose or effect as to override the legislative intent. (Id. at p. 1494.) Thus, retroactive application of section 70373 does not violate constitutional provisions regarding ex post facto laws.
Penal Code section 1465.8, subdivision (a)(1), provides: “To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) 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.”
Nonetheless, defendant urges us to follow the general rule that new statutes are “‘presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise.’” (Alford, supra, 42 Cal.4th at p. 753, citing People v. Hayes (1989) 49 Cal.3d 1260, 1274.) In Alford, the Supreme Court analyzed Penal Code section 1465.8 under this general principle (in addition to subjecting the statute to constitutional scrutiny) and concluded that legislative history confirmed an intent to apply the statute’s provisions to all criminal convictions after its effective date. (Alford, supra, at pp. 754-755.)
In People v. Castillo, supra, 182 Cal.App.4th 1410, this court recently relied on Alford in rejecting the general rule regarding prospective application of a statute as applied to section 70373. We reasoned: “The Legislature’s decision to word section 70373 like the court security fee statute, after the latter statute had been interpreted by Alford, to apply to convictions occurring after that statute’s effective date shows that the Legislature intended the new assessment to apply to convictions occurring after the new statute’s effective date.” (Id. at p. 1414.)
Defendant claims section 70373 is distinguishable from the statute examined in Alford because there was a former section 70373 that had been repealed by the time he committed his offenses. He contends that “retroactive application might also involve offenses committed prior to January 1, 2006, when the former section 70373 was still in effect.” Defendant does not cite any authority to support his assertion that the existence of a former statute with the same number as the section in question is a significant factor in determining retroactivity. In any event, former section 70373 imposed a surcharge on civil filings. (Stats. 2002, ch. 1082, § 4.) As its provisions did not apply to criminal convictions, there is no cause for concern that the two identically numbered statutes might apply to the same case.
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue of whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. We conclude that the amendments do apply to all appeals pending as of January 25, 2010. (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 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].) Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 4019, subds. (b)(2), (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Consequently, defendant having served 374 days of presentence custody, is entitled to 374 days of conduct credits.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., ROBIE, J.