P. v. Jenkins

 

 

 

 

 

Filed 1/31/14  P. v. Jenkins CA3

 

NOT TO BE PUBLISHED

 

 

 

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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

THIRD
APPELLATE DISTRICT

(Butte)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   KENNETH LEE JENKINS,                           Defendant and Appellant.

C072795   (Super. Ct. Nos. CM035912, CM036513)

 

 

 

 

            Defendant
Kenneth Lee Jenkins’s sole contention in this appeal is that the href="http://www.fearnotlaw.com/">trial court violated the prohibition
against ex post facto laws when it imposed a restitution fine of $240.  We affirm.

            We
dispense with a detailed recitation of the facts as they are unnecessary to the
disposition of this appeal.

            On
August 30, 2012, a jury found defendant guilty of driving under the influence
of alcohol and driving with a blood-alcohol
level of .08 percent or higher (DUI) -- offenses committed on November 5, 2011.
 On September 20, 2012, defendant pleaded no contest to failing to appear -- an offense
committed in May 2012. 

            Sentencing
took place on November 14, 2012.  In addition to a five-year eight-month prison
term, the trial court imposed a $240 felony restitution fine in each case under
Penal Code section 1202.4, subdivision
(b), which it characterized as “the minimum restitution fine.”  At the time of defendant’s DUI, November 5, 2011, that statute provided for a fine between $200 and $10,000, “at the
discretion of the court and commensurate with the seriousness of the offense.”  (Stats. 2011, ch. 45, § 1.)  But effective January 1, 2012, prior to trial and sentencing, the minimum fine was increased to
$240.href="#_ftn1" name="_ftnref1"
title="">[1]  (Stats. 2011, ch. 358, § 1.)

            The
ex post facto clauses of both the
federal and state Constitutions prohibit any statute which makes more
burdensome the punishment for a crime after its commission.  (Tapia
v. Superior Court (1991) 53 Cal.3d 282, 294, 295.)  â€œA restitution 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.)

            Therefore,
defendant was actually eligible for the earlier minimum fine of $200 for the DUI
offense, given that he committed the offense before the minimum amount was
raised to $240.  Furthermore, it appears
from the trial court’s remarks that it would have imposed a $200 fine for the
DUI offense had defendant’s eligibility been brought to its attention.  There was, however, no objection to the $240
fine below.

            “Although
the cases are varied, a sentence is generally ‘unauthorized’ where it could not
lawfully be imposed under any circumstance in the particular case.  Appellate courts are willing to intervene in
the first instance because such error is ‘clear and correctable’ independent of
any factual issues presented by the record at sentencing.  [Citation.]”  (People
v. Scott (1994) 9 Cal.4th 331, 354.)  The $240 fine could be lawfully imposed on November 14, 2012 -- the date of defendant’s sentencing -- and was, therefore, not
unauthorized when imposed. 

            Because
the fine was not unauthorized, defendant forfeited any claim that the trial
court mistakenly imposed more than the minimum fine by not raising it at the
sentencing hearing.  â€œAlthough the court
is required to impose sentence in a lawful manner, counsel is charged with
understanding, advocating, and clarifying permissible sentencing choices at the
hearing.  Routine defects in the court’s
statement of reasons are easily prevented and corrected if called to the court’s
attention.  As in other waiver cases, we hope to reduce
the number of errors committed in the first instance and preserve the judicial
resources otherwise used to correct them.”  (People
v. Scott, supra, 9 Cal.4th at p.
353.)  Here, had defendant raised the
2011 minimum fine amount below, the trial court could have corrected any error
in the amount of the fine.  Because he
did not, he may not challenge the fine on appeal.

DISPOSITION

            The
judgment is affirmed.

 

 

 

                                                                                              NICHOLSON              , Acting P. J.

 

 

 

We concur:

 

 

 

          DUARTE                      , J.

 

 

 

          HOCH                          , J.