P. v. Holmes

 

 

 

 

 

 

 

 

 

 

 

Filed 11/4/13 
P. v. Holmes CA5

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

 
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THE PEOPLE,   Plaintiff and Respondent,                           v.   JARRET WADE HOLMES,   Defendant and Appellant.

F066181   (Super. Ct. Nos. F11904638, F11904362, F11905770, F12900991 & F12905726)     >OPINION

 

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County.  Ralph Nunez, Judge.  (Retired judge of the superior court assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.)

            James M.
Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

            Defendant Jarret Wade
Holmes was convicted of various offenses, including href="http://www.fearnotlaw.com/">vehicle theft and methamphetamine possession,
pursuant to plea bargains in five cases. 
The first three cases were based on crimes committed before January 1,
2012, and the last two cases were based on crimes committed after January 1,
2012.  When the trial court sentenced
defendant on the five cases, it imposed a five-year aggregate prison sentence, plus
five $240 restitution fines pursuant to Penal Code section 1202.4.href="#_ftn2" name="_ftnref2" title="">^[1]  The
court stated only the following regarding the restitution fines:  “He’s to pay a restitution fine in the sum of
$1,200.  He’s to pay a fine in the sum of
$1,200, that’s $240 per case pursuant to Penal Code section 1202.4.”

On appeal, defendant contends the trial court applied the law
retroactively because it relied on the amended version of section 1202.4,
effective on January 1, 2012, to impose the $240 fine in the first three, pre-2012
cases.  He asserts this alleged reliance
on the amended statute was a violation of the prohibition against ex post facto
laws.

            Effective January 1, 2012, section name="SR;3047">1202.4 was amended to increase the >minimum restitution fine
from $200 to $240.  (§ 1202.name="SR;3064">4, subd. (b)(1), as amended by Stats. 2011, ch. 358,
§ 1, p. 3759.)  “A restitution name="SR;3140">fine qualifies as punishment for purposes of the prohibition
against ex post facto
laws.  [Citations.]”  (People
v. Saelee (1995) 35 Cal.App.4th 27, 30-31.) 
But there is nothing in the record to support defendant’s supposition
that the trial court relied on the most recent version of section name="SR;4876">1202.4 when it imposed the restitution
fines, or that the court intended to impose only the
minimum fines allowed under the two versions of the statute.  The court merely imposed the fines
without comment. 
Because the fines were well within the range of fines authorized at the time of defendant’s
commission of the pre-2012 offenses, and there is nothing in the record
indicating that the court imposed the fines pursuant to
the amended version of the statute, defendant’s ex name="SR;4948">post facto claim fails.

DISPOSITION

The judgment is affirmed.