name="_BA_ScanRange_Skip_PreScanRange_999998"> 

 

P. v. >Watts>

 

 

 

 

 

 

 

Filed 8/15/13  P. v. Watts 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NOT
TO BE PUBLISHED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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

(San Joaquin)

 

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   CHAD EARL WATTS,                           Defendant and Appellant.

C072223   (Super. Ct. No. SF116252A)

 

 

 

name="_BA_Bookmark_ScanRange_All">            Defendant Chad
Earl Watts pled no contest to href="http://www.mcmillanlaw.com/">second degree robbery,
and admitted he was personally armed with a handgun when he committed the
robbery.  He was sentenced to prison.

            On appeal, defendant contends (1) the imposition of
restitution and parole revocation fines in the amount of $240 constituted an ex
post facto application of the law, and (2) he should have received credit for
two additional days spent in presentence custody.  The People concede both claims of error.  We agree only with defendant’s second
contention.  Accordingly, we remand the
matter back to the trial court for recalculation of defendant’s presentence href="http://www.fearnotlaw.com/">custody credits,
and otherwise affirm the judgment.

>DISCUSSION

            We dispense with the facts of defendant’s crime as they
are unnecessary to our resolution of this appeal.

            >I. 
The Restitution Fine was Not Unauthorized and Requires No Modification

            At sentencing, the trial court ordered defendant “to pay
[a] $240 restitution fine” pursuant to Penal
Code section 1202.4.href="#_ftn1" name="_ftnref1" title="">^[1]  The court also imposed and stayed a parole
revocation fine pursuant to section 1202.45
in the same amount.  Defense counsel made
no objection to either fine.

            On appeal, defendant contends both $240 fines should be
reduced to $200 because the minimum was $200 when he committed his offense in
2010.  (Compare Stats. 1994, cname="_BA_Cite_8FA591_000027">h. 1106, § 3, p. 6548 with Stats. 2011,
ch. 358, § 1; see >People v.
Holman (2013) 214 Cal.App.4th 1438, 1452, fn. 3.)  Defendant essentially contends that using the
minimum at the time of the sentencing hearing amounted to an ex post facto
violation.  The People agree.  We do not.

            True, an excessive fine may constitute an href="http://www.fearnotlaw.com/">ex post facto violation
and an unauthorized sentence can be challenged for the first time on appeal
when the fine imposed exceeds the maximum amount allowed at the time the
defendant committed his offense.  (See >People v.
Valenzuela (2009) 172 Cal.App.4th 1246, 1249 [appellate court reduced
$300 fine to applicable statutory maximum of $200]; see also >People v.
Smith (2001) 24 Cal.4th 849, 852.) 
But the restitution $240 fine was not “unauthorized” when imposed
because the Penal Code provision in effect
when defendant committed the crime permitted restitution and parole revocation
fines to be imposed in a range between $200 and $10,000.  Thus, the $240 fines imposed on defendant
were not unauthorized but within statutory limits.

Moreover, nothing in the record
suggests the trial court intended to impose the applicable statutory
minimum.  The fact that the court could
have imposed restitution and parole revocation fines as small as $200 based on
the operative Penal Code provision does
not render the $240 fines the court did impose unauthorized.  Because the amount of the fines the court
imposed was within its power, defendant’s failure to challenge the $240 fines
in the trial court precludes him from challenging it for the first time on
appeal.  (Cf. People v. Smith, supra, 24 Cal.4th
at p. 852.)

>II.  The Matter is Remanded for Recalculation of
Defendant’s Custody Credits

            At sentencing, the trial court awarded 134 days’ credit
for time spent in actual custody (from November 4, 2010,
to March 17,
2011), plus 354 days (from August 17, 2011,
to August 6,
2012), for a total of 488 actual
days spent in custody.

            Defendant claims he is entitled to two additional days’ credit
for time spent in presentence custody -- 356, rather than 354, days for his
second “stint” in jail -- because the trial court failed to properly credit
each day he spent in custody, including both the day of his arrest and
sentencing.  The People agree that
defendant should have received 356 days’ credit, rather than 354, for the
second period spent in custody.  They ask
that we remand the matter to the trial court for recalculation of defendant’s
custody credits, in accordance with section 2900.5,
subdivision (d) [imposing on the trial court the duty of determining the dates
spent in custody and the total number of days to be credited].  We shall do so.

>DISPOSITION

            The matter is remanded for a recalculation of defendant’s
presentence custody credits.  The trial
court shall prepare an amended abstract of judgment reflecting the change (if
any) in the award of custody credits and shall forward a copy of the amended
abstract to the Department
of Corrections and Rehabilitation.  In all other respects, the judgment is
affirmed.name="_BA_Bookmark_PnA">name="_BA_Bookmark_Subrange_8FA591_0001">

 

 

                                                                            BLEASE                             , Acting
P. J.

 

 

We concur:

 

 

                NICHOLSON                    , J.

 

 

                HULL                                 ,
J.

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id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">^[1]  Further statutory references are to the Pname="_BA_Cite_8FA591_000019">enal Code.