Wallace

I. INTRODUCTION

Defendant, Jamaal Rayshawe Wallace, appeals from his conviction of second degree robbery (Pen. Code, 1 § 211) with personal firearm use. (§ 12022.53, subd. (b).) Defendant was sentenced to 15 years in state prison. He was ordered to pay $310 in victim restitution (§ 1202.4, subd. (f)), a $2,000 restitution fine (§ 1202.4, subd. (b)), a $2,000 parole restitution fine if he violated the conditions of his parole (§ 1202.45), and a $20 court security fee (§ 1465.8, subd. (a)(1)). Defendant received credit for 139 days of actual presentence custody, plus 20 days of conduct credit (§§ 2933.1, 667.5, subd. (c)(9)), for a presentence custody credit of 159 days.

We appointed counsel to represent defendant on appeal. Counsel has filed a brief in which no issues were raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442 [ 158 Cal.Rptr. 839 , 600 P.2d 1071 ]; see Smith v. Robbins (2000) 528 U.S. 259, 264 [ 145 L.Ed.2d 756 , 120 S.Ct. 746 ].) On January 15, 2004, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. No response has been received. We asked the…

I concur.

The imposition of a monetary obligation upon conviction pursuant to a Penal Code provision would seem to be a penalty that is subject to the ex post facto laws. (U.S. Const., art. 1, § 10, cl. 1; Cal. Const., art. I, § 9.) I believe the obligation results in a punishment. Defendant is not a voluntary user of the court facility.

Nevertheless, the authorities support the conclusion of the majority. Even the dissenters in Smith v. Doe (2003) 538 U.S. 84 [ 155 L.Ed.2d 164 , 123 S.Ct. 1140 ], appear to acknowledge that some sanctions may not be subject to the ex post facto clause of the United States Constitution. Justice Ginsburg, in disagreeing with the majority that a sex registration act did not violate the ex post facto clause, said, “What ultimately tips the balance for me is the Act’s excessiveness in relation to its nonpunitive purpose.” (Id. at p. 116.) Here, the provision involves a modest sum. Justice Stevens, also dissenting in Smith v. Doe, stated, “In my opinion, a sanction that (1) is imposed on everyone who *880 commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person’s liberty is punishment.” (Id. at p. 113.) The fee…

Certified for Partial Publication. [*]

Defendant, Jamaal Rayshawe Wallace, appeals from his conviction of second-degree robbery (Pen.Code, [1] § 211) with personal firearm use. (§ 12022.53, subd. (b).) Defendant was sentenced to 15 years in state prison. He was ordered to pay $310 in victim restitution (§ 1202.4, subd. (f)), a $2,000 restitution fine (§ 1202.4, subd. (b)), a $2,000 parole restitution fine if he violated the conditions of his parole (§ 1202.45), and a $20 court security fee (§ 1465.8, subd. (a)(1)). Defendant received credit for 139 days of actual presentence custody, plus 20 days of conduct credit (§§ 2933.1, 667.5, subd. (c)(9)), for a presentence custody credit of 159 days.

We appointed counsel to represent defendant on appeal. Counsel has filed a brief in which no issues were raised. ( People v. Wende (1979) 25 Cal.3d 436, 441-442 , 158 Cal.Rptr. 839 , 600 P.2d 1071 ; see Smith v. Robbins (2000) 528 U.S. 259, 264 , 120 S.Ct. 746 , 145 L.Ed.2d 756 .) On January 15, 2004, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. No response has…