P. v. Miller
Filed 3/12/07 P. v. Miller CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. GARY MILLER, Defendant and Appellant. | E040337 (Super.Ct.No. CR60861 and RIF72792) OPINION |
APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed with modification.
Jason R. Frye, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen K. Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
Facts and Procedural History
Case number CR60861
On June 21, 1995, defendant Gary Miller (defendant), who was on probation at the time, pled guilty to one count of possessing methamphetamine with intent to sell. (Health & Saf. Code, 11378.) The date of his underlying offense was January 18, 2005. On September 7, 1995, the court sentenced him to two years in state prison and imposed a restitution fine of $200. (Pen. Code, 1202.4.)
Case number RIF72792
Almost exactly two years later, on June 18, 1997, and again while on probation, defendant pled guilty to possession of methamphetamine and admitted that he had two prior convictions and a strike on his record. (Health & Saf. Code, 11377, subd. (a); Pen. Code, 667.5, subd. (b) & 667, subd. (e)(1).)[1] Immediately after accepting his plea, the trial court sentenced him to eight years in state prison: the midterm of three years for the drug possession conviction, doubled because of the strike, plus one year for each of the admitted priors. ( 667, subds. (c) & (e)(1) & 667.5, subd. (b).)
On August 8, 2005, in response to a letter from the Department of Corrections and pursuant to the provisions of section 1204.45, the court added parole revocation fines of
$200 in each of the two cases. This appeal followed.
Discussion
Defendant contends that under the United States Supreme Court decision in Johnson v. United States (2000) 529 U.S. 694, and the California appellate case People v. Callejas (2000) 85 Cal.App.4th 667, the parole revocation fine in the 1995 case must be stricken. Respondent agrees. So do we.
The Ex Post Facto Clause of the United States Constitution (Art. I, 9), bars application of a law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. . . . [Citation.] (Johnson, supra, 529 U.S. 694 at p. 699 citing Calder v. Bull (1798) 3 U.S. 386 (3 Dall.) 390.) A post-revocation fine relates to the original offense, not to the probation violation. (Callejas, supra, 85 Cal.App.4th at p. 678.) Section 1204.45 was enacted on August 3, 1995. (Stats. 1995, ch. 313, 6, p. 1758.) Defendants underlying offense in the 1995 case
was committed more than six months earlier. Accordingly, his parole revocation fine in that case must be reversed.
Disposition
The judgment is modified by striking the parole revocation fine in case number CR60861. As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
McKINSTER
J.
RICHLI
J.
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[1] All further statutory references are to the Penal Code.
