Fear Not Law Articles: P. v. Merkwan

P. v. Merkwan

Filed 1/19/07 P. v. Merkwan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

GERALD JAMES MERKWAN,

Defendant and Appellant.

F050062

(Super. Ct. No. VCF147109)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Ronn M. Couillard, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Gerald Merkwan pled no contest to two counts of committing a lewd or lascivious act against a child under the age of 14 (Pen. Code, § 288, subd. (a)).^{^[1]} The court imposed a prison term of eight years and two fines of $1,600 each, pursuant to sections 1202.4 and 1202.45, respectively. The court stayed the latter fine pending successful completion of parole. We refer to the latter fine as the parole revocation fine.

On appeal, appellant contends, and respondent concedes, the court erred in imposing the parole revocation fine. We agree.

Section 1202.45 became effective in 1995. Appellant committed the instant offenses in 1991. The imposition of a parole revocation fine under section 1202.45 based on offenses committed before the enactment of section 1202.45 violates the constitutional proscription against ex post facto laws. (People v. Callejas (2000) 85 Cal.App.4th 667, 678.) Accordingly, we will modify the judgment by striking the parole revocation fine.

DISPOSITION

The judgment is modified by striking the section 1202.45 parole revocation fine. As so modified, the judgment is affirmed.

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^* Before Cornell, acting P.J., Gomes, J., and Dawson, J.

^{^[1]} All statutory references are to the Penal Code.

Description	Appellant pled no contest to two counts of committing a lewd or lascivious act against a child under the age of 14 (Pen. Code, S 288, subd. (a)). The court imposed a prison term of eight years and two fines of $1,600 each, pursuant to sections 1202.4 and 1202.45, respectively. The court stayed the latter fine pending successful completion of parole. Court refer to the latter fine as the parole revocation fine. On appeal, appellant contends, and respondent concedes, the court erred in imposing the parole revocation fine. Court agree.
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