P. v. Markham
Filed 4/25/06 P. v. Markham CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
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| THE PEOPLE, Plaintiff and Respondent, v. ANN CATHERINE MARKHAM, Defendant and Appellant. | C050096
(Super. Ct. No. CM019607)
|
Defendant Ann Catherine Markham was found guilty after a court trial of felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor driving under the influence of drugs (Veh. Code, § 23152, subd. (a)). Defendant was granted probation. Among the fines and fees imposed at sentencing, the court imposed a $300 probation revocation fine pursuant to Penal Code section 1202.44[1] (undesignated statutory references are to this code).
On appeal, defendant contends that imposing a section 1202.44 fine constitutes an impermissible ex post facto punishment because her crimes were committed prior to the enactment of the fine. Both of defendant's convictions arose from a single incident that occurred on June 16, 2004. Section 1202.44 was added and became effective on August 16, 2004. (Stats. 2004, ch. 223, § 3.)
In People v. Callejas (2000) 85 Cal.App.4th 667, 678, the Court of Appeal concluded that a similar provision found in section 1202.45, requiring the imposition of a parole revocation restitution fine, could not constitutionally be applied where the underlying crime preceded the enactment of the statute. Here, the Attorney General concedes that the reasoning of Callejas applies equally to the imposition of probation revocation restitution fines pursuant to section 1202.44. We agree, and shall order the fine stricken.
DISPOSITION
The Penal Code section 1202.44 fine is stricken. As modified, the judgment is affirmed. The trial court is directed to prepare an amended judgment/sentence of formal probation and
to forward a certified copy of the amended judgment to the Butte County Probation Department.
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
ROBIE , J.
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[1] Penal Code section 1202.44 provides that in cases where a person receives a sentence including a period of probation the court â€
