Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. LF008183A, Louis P. Etcheverry, Judge.
Rex Williams, 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, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Detjen, J., Franson, J.
Pursuant to a plea agreement, appellant, Eleazar Galvan Valencia, pled no contest to two counts of committing a forcible lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (b)(1); counts 1, 2). The court imposed a prison sentence of 16 years and made various orders, including that appellant pay on counts 1 and 2, respectively, fines of $300 and $500 pursuant to Penal Code section 290.3 (section 290.3) and penalty assessments of $780 and $1,300. Those penalty assessments included, among other charges, assessments under Government Code section 76104.7 (section 76104.7) of $30 and $50 on counts 1 and 2, respectively.
On appeal, appellant contends, and the People concede, as follows: (1) the section 290.3 fines exceeded the amount allowed under the version of the statute in effect at the time of the commission of the underlying offenses, and therefore, those fines, and the penalty assessments computed on the basis of those fines, violated constitutional prohibitions against ex post facto laws; (2) appellant committed the instant offenses prior to the enactment of section 76104.7, and therefore, the imposition of assessments pursuant to that statute also violated constitutional prohibitions against ex post facto laws. We agree, and will modify the judgment accordingly.
DISCUSSION
Section 290.3 Fines
The ex post facto clause of the United States Constitution prohibits legislation which, among other things, “‘makes more burdensome the punishment for a crime, after its commission....’” (Collins v. Youngblood (1990) 497 U.S. 37, 42.) “California’s ex post facto law is analyzed in the same manner as the federal prohibition.” (People v. Alford (2007) 42 Cal.4th 749, 755.)
Section 290.3 currently provides that every person convicted of certain enumerated offenses, including committing a forcible lewd act upon a child under the age of 14, in violation of Penal Code section 288, subdivision (b)(1), must pay “a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction....” As indicated above, the court imposed section 290.3 fines in connection with the instant offenses in amounts authorized under the current version of the statute.
However, appellant committed the instant offenses between April 29, 2004, and April 28, 2006. In that time period, the fine under section 290.3 was $200 for the first conviction or $300 for each subsequent conviction. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.) Because the fine in section 290.3 is punitive on its face (§ 290.3 [a defendant convicted of a specified offense “shall... be punished by a fine”]), the imposition of section 290.3 fines in connection with the instant offenses which are in excess of the amounts allowed under the statute at the time of the commission of those offenses, violated constitutional prohibitions against ex post facto laws. (Ibid.) Accordingly, as the parties agree, those fines must be reduced to the amounts authorized by the version of section 290.3 in effect at the time of the commission of the offenses giving rise to the fines.
Section 76104.7 Penalty Assessments
Section 76104.7, which provides, subject to exceptions not relevant here, for a penalty assessment of $1 for every $10 upon every fine imposed for a criminal offense, became effective on July 12, 2006 (Stats. 2006, ch. 69, § 18, p. 1111, effective July 12, 2006), after the commission of the instant offenses. As the parties agree, because the statute was not in effect at the time of the instant offenses, the court erred in imposing assessments under that statute. In People v. Batman (2008) 159 Cal.App.4th 587, the court held that the Government Code section 76104.6 penalty assessment is punitive in nature and therefore its imposition violates the constitutional prohibition of ex post facto laws where the defendant’s criminal act preceded its enactment. The same analysis applies to the section 76104.7 penalty assessment. Therefore, as the parties also agree, the court erred in imposing the penalty assessments under section 76104.7. Accordingly, those assessments must be stricken.
DISPOSITION
The Penal Code section 290.3 fine imposed in connection with the count 1 conviction is reduced to $200.
The Penal Code section 290.3 fine imposed in connection with the count 2 conviction is reduced to $300.
The penalty assessments imposed under Government Code section 76104.7 as to both counts 1 and 2 are stricken.
The matter is remanded to the trial court for determination of the remaining penalty assessments.