P. v. Georgepolous
A jury convicted Dominic Georgepolous of burglary (Pen. Code,[1] § 459) and possession of a forged item (§ 475, subd. (a)). The court thereafter found six prison priors to be true. (§ 667.5, subd. (b).)
Appellant was sentenced to a split term of four years in county jail plus four years mandatory supervision upon release. Appellant was awarded 173 actual days of custody credits plus 86 days of credits pursuant to section 4019. The court also imposed a $3,200 restitution fine (§ 1202.4, subd. (b)).
Georgepolous appeals contending he is entitled to additional section 4019 credits and that the court erred in ordering a $3,200 restitution fine. As to the latter issue appellant recognizes he did not oppose the amount of the fine in the trial court and that it is likely the issue will be deemed forfeited on appeal. He therefore argues his trial counsel was ineffective for failing to object to the amount of the fine.[2]
The People have responded and have correctly conceded that since appellant was sentenced under the realignment statute, to impose a lesser amount of custody credits based upon an earlier statute would amount to an increase in penalty in violation of the ex post facto limitation of the federal Constitution. (Weaver v. Graham (1981) 450 U.S. 24.) Accordingly, the People concede that appellant is entitled to an additional 87 days of section 4019 credits. We will order the judgment modified accordingly. Regarding the restitution fine, we will find the issue forfeited by failure to raise it in the trial court. We will also find there is nothing in this record on which we could base a reasonable analysis of the ineffective assistance of counsel claim. Any remedy that might be available to appellant must be separately pursued by a petition for writ of habeas corpus filed in the trial court.[3]
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