P. v. Jackson
Frederick L. Jackson appeals from the judgment entered after conviction by a jury of the first degree murder of Genoveva Gonzales. (Pen. Code, 187, subd. (a), 189.)[1] The jury found true an allegation that a principal in the commission of the offense had been armed with a firearm. ( 12022, subd. (a)(1).) The jury found not true a special circumstances allegation that the murder had been committed during the commission of rape. ( 190.2, subd. (a)(17).) Appellant was sentenced to prison for 26 years to life.
This conviction followed a retrial of the murder charge. Appellant was originally convicted of first degree murder and rape. ( 261, subd. (a)(2).) The jury found true an arming enhancement ( 12022, subd. (a)(1)) and a special circumstances allegation that the murder had been committed during the commission of rape. The jury acquitted appellant of kidnapping Gonzales. Appellant was sentenced to life without the possibility of parole plus a consecutive six-year term for the rape conviction. In an unpublished opinion, we modified the judgment to stay the sentence on the rape conviction and affirmed the judgment as modified. (People v. Jackson (March 4, 1997, B097070).)[2]
On March 26, 2004, the Ninth Circuit Court of Appeals granted a writ of habeas corpus vacating the first degree murder conviction. The Ninth Circuit concluded that evidence had been "admitted against [appellant] in patent violation of Miranda v. Arizona [(1966) 384 U.S. 436], and [appellant had] suffered substantial prejudice as a result." (Jackson v. Giurbino (9th Cir. 2004) 364 F.3d 1002, 1011 (Jackson).) The Ninth Circuit left undisturbed appellant's rape conviction. (Id., at pp. 1011-1012.)
Appellant contends that the trial court erroneously (1) took judicial notice of the rape conviction, (2) precluded him from presenting evidence of the kidnapping acquittal, (3) denied his motion for a mistrial, and (4) imposed a parole revocation restitution fine pursuant to section 1202.45. Respondent correctly concedes that the imposition of the fine violated the constitutional ban against ex post facto laws. Court modify the judgment to strike the fine and affirm the judgment as modified.
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