People v. Walker6/4/2004
By plea bargain, defendant, Michael Dawayne Walker, pled no contest to a charge of driving under the influence of alcohol (Veh.Code, § 23152, subd. (a)) with a prior conviction of drunk driving with injury (Veh.Code, § 23153).
In addition to a state prison sentence, Walker was ordered to pay various fines and assessments. He was ordered to pay an enhanced amount of money pursuant to Government Code section 70372, which provides for state court construction. [FN1]
FN1. Government Code section 70372 states, in pertinent part, "(a) Except as otherwise provided in this article, there shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses, including, but not limited to, all offenses, except parking offenses, as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Fish and Game Code, the Health and Safety Code, or the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code."
Walker challenges only the levy on his fine pursuant to Government Code section 70372 as being violative of state and federal ex poste facto laws. (The underlying offense was committed prior to the effective date of the section.)
In People v. Rivera (1998) 65 Cal.App.4th 705, the appellate court distinguishes "user" fines from fines which are primarily punitive in nature as a means of determination of whether an assessment violates ex poste facto laws. (Id. at pp. 710-711.)
Although the state court construction fund assessment clearly is a user fee whose purpose is to further reasonable access to the courts (Gov.Code, § 70371), such fees may still constitute a violation of ex poste facto laws if the amount actually imposed is punitive in its effect or relatively large. (People v. Zito (1992) 8 Cal.App.4th 736, 741.) In this case, however, as recognized by the People on appeal, the trial court did not break down the various fines and fees beyond stating: "[A] restitution fine of $200, per 1203.4(b) of the Penal Code, and that can be received from any funds available in prison. There's a restitution fine of $200 imposed but suspended pending a future parole revocation in accordance with 1203.45 of the Penal Code. There is a $128.50 [typographical error, $1,228.50 is the proper amount per the minutes and abstract] fine, and that includes all penalty assessments and construction penalty funds and surcharges. There is [a] $157.50 alcohol abuse assessment order[ed] pursuant to 23645(a) of the Vehicle Code, and that includes all assessments and surcharges."
Therefore, we are unable to distinguish from the ordered fines and assessments what portion of the total constitutes the state court construction fund levy. As we are unable to determine the amount, we are also unable to determine if it is a "user" fine or one punitive in effect. (People v. Rivera, supra, 65 Cal.App.4th at pp. 710-711.)
However, it was incumbent upon defendant, at sentencing, to object to the imposition of the Government Code section 70372 fine, in whatever amount. Failure to do so constituted a waiver of his right to assert error on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.) "Even a constitutional right must be raised at the trial level to preserve the issue on appeal." (In re Marriage of Fuller (1985) 163 Cal.App.3d 1070, 1076.)
Although it is correct, as recognized in People v. Zito, supra, 8 Cal.App.4th at page 741, that unauthorized sentences are not af
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