P. v. Mills

 

 

 

 

 

 

 

 

Filed 6/21/13  P. v. Mills 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Sacramento)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   LAMAR DUVALL MILLS,                           Defendant and Appellant.

C071497   (Super. Ct. No. 11F08256)

 

 

            Defendant
Lamar Duvall Mills pled guilty to infliction of corporal injury resulting in a
traumatic condition on or about November
29, 2011, and admitted a strike prior in exchange for a stipulated href="http://www.fearnotlaw.com/">state prison sentence of six years and
dismissal of another count as well as a petition for probation revocation in
another case.  In taking defendant’s
plea, the trial court advised him that he would “receive a fine of between $200
and $10,000,” and defendant said he understood. 


            The
probation report recommended a restitution fine of $1,200 and a parole
revocation restitution fine in the same amount. 
At the sentencing hearing, defense counsel asked the court to lower the
amount of the restitution fine “to $240. 
That is the minimum amount to be paid in restitution.”  The court responded, “All right.  I will do that.  It is 240 now?”  Defense counsel said, “Yes,” and the court
said, “I know we changed that.” 
Thereafter, the court ordered defendant to pay a restitution fine of
$240 and a parole revocation restitution fine in the same amount (stayed). 

            On appeal,
defendant contends the $240 fines should both be reduced to $200 because the
minimum was $200 when he committed his offense.href="#_ftn1" name="_ftnref1" title="">[1]  Defendant essentially contends that using the
minimum at the time of the sentencing hearing amounted to an ex post facto
violation and “constituted an unauthorized sentence” that “may be corrected
even though there was no objection in the trial court.”  The People, on the other hand, contend a $240
restitution fine was “not unauthorized but was obviously well within statutory
limits,” given that the operative Penal Code provisions permitted a fine
anywhere between $200 and $10,000.

            The People
are correct.  It is true, as defendant
argues, that an excessive fine may constitute an href="http://www.fearnotlaw.com/">ex post facto violation and an
unauthorized sentence that 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 statutory maximum
of $200].)  That is not what happened
here, however.

            Here,
defense counsel asked the trial court to impose the minimum fine of $240.  The court did so.  The only problem was that while that amount >was the minimum fine at the time of the href="http://www.fearnotlaw.com/">sentencing hearing, the minimum that was
applicable to defendant was $40 less. 
Still, the amount the court imposed was within the statutory range of $200 to $10,000 that applied to
defendant.  Even if we assume, as defendant
argues, that the trial court intended to impose the applicable statutory
minimum, which was actually $200 rather than $240, defendant is wrong in his
argument that “the difference between the court’s stated exercise of discretion
and the fine actually imposed . . . makes [the fine imposed] an unauthorized
sentence”  that can be challenged for the
first time on appeal. The $240 fine was an authorized
sentence because it fell within the range allowed by the statute at the time
defendant committed his crime.  The fact
that the court could have imposed a fine as small as $200 does not make the
$240 fine the court did impose unauthorized. 
Because the amount of the fine the court imposed was within its power,
defendant’s failure to challenge the $240 fine in the trial court precludes him
from challenging it for the first time on appeal.

DISPOSITION

            The
judgment is affirmed.

 

 

 

                                                                       ROBIE          , Acting P. J.

 

 

 

We concur:

 

 

 

          MURRAY         , J.

 

 

 

          DUARTE         , J.