P. v. Owens
Filed 12/31/08 P. v. Owens 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. GRANT CHARLESTON OWENS, Defendant and Appellant. | C058587 (Super. Ct. Nos. CM027121 & CM027286) |
Defendant Grant Charleston Owens entered negotiated pleas of no contest to rape by use of an intoxicating or controlled substance (case No. CM027121) and first degree burglary (case No. CM027286). In a bench trial on the other allegations in case No. CM027286, the trial court found defendant had a prior serious felony conviction and had served two prior separate prison terms. At sentencing, the court dismissed the prior prison term enhancements, committed defendant to the maximum term allowed under the plea agreement, 21 years in state prison, and imposed various fines and fees.
On appeal, defendant contends that a fine imposed pursuant to Penal Code section 290.3 violated the prohibition against ex post facto application of laws. We agree and shall modify the judgment.
FACTS
Case No. CM027121 While Kelly M. and several friends went out to celebrate on August 12, 2006, she saw defendant, a coworker, and his cousin. The celebration concluded around 4:45 a.m. [E]xhausted and intoxicated, Kelly M. was taken to her apartment and left alone. Around 5:20 a.m., she awoke in a panic, finding defendant on top of her, trying to have intercourse. He raped her and left when she pushed him off.
Case No. CM027286 On June 29, 2007, just before 3:03 a.m., Meredith M. heard a noise in her living room. She took a large can of mace and entered the room. Defendant, whom she had previously dated, was standing outside a glass door. As she called 9-1-1, he broke the glass door and entered. Defendant left when she sprayed him with mace.
DISCUSSION
Defendant contends the fine imposed by the trial court pursuant to Penal Code section 290.3 violated the prohibition against the ex post facto application of laws. The People concede this argument does have merit but assert defendant forfeited the issue by failing to raise the objection in the trial court.
Penal Code section 290.3, subdivision (a) provides that a defendant must pay specified fines for violating offenses listed in Penal Code section 290 (sexual offender registration). (Further section references are to the Penal Code.) Rape by use of an intoxicating or controlled substance ( 261, subd. (a)(3)) is a crime listed in section 290. ( 290, subd. (c).)
When defendant committed the rape on August 13, 2006, the fines were $200 for a first conviction and $300 for each subsequent conviction. Section 290.3 was amended in 2006 to raise the fines to $300 for a first offense and $500 for each subsequent offense as of September 20, 2006. (Stats. 2006, ch. 337, 18, eff. Sept. 20, 2006.) The trial court imposed a $300 fine for defendants violation of section 261, subdivision (a)(3).
Under ex post facto principles, the amount of a fine is determined as of the date of the offense. (See People v. Saelee (1995) 35 Cal.App.4th 27, 30.) There is no merit to the Peoples assertion that defendant forfeited his right to challenge the error by failing to object in the trial court. (People v. Zito (1992) 8 Cal.App.4th 736, 741-742 [failure to raise an ex post facto claim in the trial court did not forfeit the claim.]
DISPOSITION
The judgment is modified by reducing the section 290.3 fine to $200 and reducing the penalties and assessments imposed on the fine (which are computed as a percentage of the base fine) as follows: the state court facilities construction fund fine (Gov. Code, 70372) is reduced from $150 to $100, the state penalty assessment ( 1464) is reduced from $300 to $200, the county penalty assessment (Gov. Code, 76000) is reduced from $210 to $140, and the two $30 DNA identification fund fees (Gov. Code, 76104.6, 76104.7) are both reduced to $20. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect these modifications and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
SCOTLAND , P. J.
We concur:
BLEASE , J.
DAVIS , J.
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