P. v. Andrade
Filed 9/19/13 P. v. Andrade CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JORGE ARMANDO ANDRADE,
Defendant and
Appellant.
F064301
(Super.
Ct. Nos. BF138357A &
BF139450A)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
Kendall
Dawson Wasley, 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, Charles A. French and John G.
McLean, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant
Jorge Armando Andrade was convicted in separate cases of being a felon in
methamphetamine. The only issues in
this appeal concern the fines and fees included in his sentences.
We agree
with Andrade that the restitution fine (Pen. Code, § 1202.4,
subd. (b))
title="">[1] and the matching parole revocation restitution
fine (§ 1202.45) in the ammunition case must be reduced from $240 each to
$200 each. Also, the parties correctly
agree that the processing fee (former § 1205, subd. (d)) must be $30
in that case, not the $45 the court imposed.
In the drug
case, the court imposed a $240 restitution fine, and the record is unclear on
whether it imposed any parole revocation restitution fine. Again, the restitution fine must be reduced
to $200. We reject the People’s
contention that a matching parole revocation restitution fine must be imposed
for this offense, however. Since it is a
county jail offense, there will be no parole for it, so the parole revocation
restitution fine is inapplicable.
We will
order the necessary corrections to the abstracts of judgment and affirm the
judgments as modified.
FACTUAL AND
PROCEDURAL HISTORIES
In case
No. BF138357A, Andrade was charged with one count of being a felon in
possession of ammunition. (§ 12316,
subd. (b)(1).) The information
further alleged that Andrade had three prior felony convictions and, within the
last five years, had served a prior prison term. A jury found Andrade guilty as charged. The offense took place on August 27, 2011.
In case
No. BF139450A, Andrade pleaded no contest to one count of transporting
methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and
admitted a prior drug conviction. The
offense took place on November 21,
2011.
The court
sentenced Andrade in both cases on January 27,
2012. In the ammunition case,
the court imposed a three-year term in state prison, consisting of the two-year
middle term plus one year for the prior prison term enhancement. In the drug case, the court imposed a
concurrent term of six years in county jail, consisting of the upper term of
three years plus a three-year enhancement for the prior drug conviction.
The fines
and fees imposed in the ammunition case included a restitution fine of $240
(§ 1202.4, subd. (b)) and a parole revocation restitution fine of
$240, which was suspended unless parole was revoked (§ 1202.45).
In the drug
case, the court imposed a fee of $45 for processing and collection of fines,
pursuant to former section 1205, subdivision (d) (now subdivision
(e)). The court also imposed a
restitution fine of $240. The record is
unclear about whether the court imposed the parole revocation restitution fine
in the drug case. The court’s minute
order states that it did so. In the
court’s oral pronouncement of sentence as reflected in the reporter’s
transcript of the sentencing hearing, however, the court did not mention the
parole revocation restitution fine. The
abstract of judgment for the drug case is missing from the appellate
record.
DISCUSSION
I. Ammunition case
fines
Section 1202.4
requires the court to impose a restitution fine in every criminal case unless
the court finds compelling and extraordinary reasons not to impose it. (§ 1202.4, subd. (b).) In addition, if the sentence “includes a
period of parole,†the court must impose a “parole revocation restitution fine
in the same amount†as the restitution fine.
(§ 1202.45, subd. (a).)
Under the
version of section 1202.4 in effect in 2011, when the crimes were
committed in this case, the minimum restitution fine for a felony was
$200. (Former § 1202.4,
subd. (b)(1).) An amendment raised
the amount to $240 “starting on January 1, 2012.†(§ 1202.4, subd. (b)(1); Stats.
2011, ch. 358, § 1.)
Here, the
sentencing took place in January 2012 and the court imposed restitution and
parole revocation restitution fines of $240 each. Andrade argues that the ex post facto clauses
of the state and federal Constitutions bar the application of fines to offenses
that took place after the fines became effective. (See, e.g., Fox v. Alexis (1985) 38 Cal.3d 621, 630 [ex post facto clauses
prohibit retroactive application of increased criminal sanctions];
131, 136 [§ 1202.4 could not be applied to offenses occurring before its
original effective date, Jan. 1, 1984].)
The People
do not deny that if the court intended to impose the minimum fines, it erred in
applying the $240 minimum instead of the $200 minimum in effect at the time the
crime was committed. They maintain, however,
that Andrade has failed affirmatively to demonstrate that this was the court’s
intent. The court has discretion to
impose fines exceeding the minimum, and the record does not prove the court did
not intend to do so.
The
People’s argument is unpersuasive.
Nothing in the record supports the notion that the court intended to
impose a fine greater than the minimum by the arbitrary amount of $40. The overwhelming probability is that the
court simply used the new minimum by mistake.
This amounted to an inadvertent retroactive application of a new minimum
penalty. We will order it corrected.
II. Drug case
A. Processing fee
Former
section 1205, subdivision (d) (now subdivision (e)), provides in
part: “The defendant shall pay to the
clerk of the court or the collecting agency the fee established for the
processing of the accounts receivable that are not to be paid in
installments. The fee shall equal the
administrative and clerical costs, as determined by the board of supervisors,
or by the court, depending on which entity administers the account, except that
the fee shall not exceed thirty dollars ($30).â€
The parties
agree that the court erred when it imposed a fee of $45. We will order it reduced to $30.
The court
imposed a restitution fine of $240 for the drug offense. For the reasons discussed above, the
applicable minimum was $200, and the record is most plausibly understood as
indicating that the court intended to impose the minimum. We will order the fine reduced.
The court’s
minute order states that a parole revocation restitution fine of $240 was
imposed for the drug offense; the transcript of the court’s oral remarks does
not reflect imposition of this fine; and the abstract of judgment is
missing. The People maintain that the
fine was required and ask us to order the court to make sure it is included in
the abstract of judgment. Andrade argues
that the fine is inapplicable to the drug offense and the court properly
omitted it from its oral remarks.
In 2011,
when the offense was committed, former section 1202.45 provided: “In every case where a person is convicted of
a crime and whose sentence includes a period of parole, the court shall at the
time of imposing the restitution fine pursuant to subdivision (b) of
Section 1202.4, assess an additional parole revocation restitution fine in
the same amount as that imposed pursuant to subdivision (b) of
Section 1202.4.â€
name="_ftnref3" title="">[2]
We agree
with Andrade’s view that this fine does not apply because the sentence for the
drug offense does not include a period of parole. Under the 2011 Realignment Legislation (Stats. 2011, ch. 15, § 1; Stats.
2011, 1st Ex. Sess., ch. 12, § 1), a violation of Health &
Safety Code section 11379, subdivision (a), is punishable by a term
in county jail unless the defendant has been convicted of a violent or serious
prior felony. (§ 1170,
subd. (h); Health & Saf. Code, § 11379, subd. (a).) There was no allegation that Andrade had a
prior violent or serious felony conviction, and the court stated that it was
committing Andrade to the county jail for this offense. A period of parole is included in a sentence
committing a defendant to state prison, not county jail. (§ 3000, subd. (a)(1).)
The court
correctly omitted this fine from its oral pronouncement of sentence. The minute order is in error. We will order the court to ensure that the
abstract of judgment omits the fine.
DISPOSITION
The trial
court is ordered to amend the abstracts of judgment in the following
particulars. In case No. BF138357A,
the restitution fine (§ 1202.4, subd. (b)) and the parole revocation
restitution fine (§ 1202.45) shall be reduced to $200 each. In case No. BF139450A, the processing
fee (former § 1205, subd. (d)) shall be reduced to $30 and the
restitution fine (§ 1202.4, subd. (b)) shall be reduced to $200. If the abstract indicates a parole revocation
restitution fine (§ 1202.45) in that case, that fine must be deleted. The judgments are affirmed with these
modifications. The trial court shall
forward the amended abstracts to the appropriate correctional authorities.
name="_ftn1" title=""> * Before Cornell, Acting P.J., Kane, J., and
Franson, J.
name="_ftn2" title=""> [1]Subsequent statutory references are to the
Penal Code unless otherwise noted.
