Fear Not Law Articles: P. v. Romero

P. v. Romero

Filed 4/18/07 P. v. Romero CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

ISRAEL ROMERO,

Defendant and Appellant.

F050422

(Super. Ct. No. F04901890-4)

O P I N I O N

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, 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, J. Robert Jibson, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

In October 2004, appellant, Israel Romero, pled no contest to felony possession of PCP (Health & Saf. Code, 11377, subd. (a)), and admitted allegations that he had (1) suffered a strike^{^[1]}and (2) served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)). In January 2005, the court struck the strike and placed appellant on probation. In May 2006, appellant suffered a conviction of misdemeanor driving a motor vehicle while under the influence of alcohol or drugs (Veh. Code, 23152, subd. (a)), and based on that conviction, and on appellants admission of an allegation that he violated his probation by not remaining in contact with the probation department, the court denied reinstatement on probation and imposed a prison term of three years. At sentencing, the court also stated, Ill lift the stay on the 1202.44 fine of $200, given the violation and the state prison sentence.

Thus, the court purported to lift the stay on a $200 fine imposed pursuant to Penal Code section 1202.44 (section 1202.44).^{^[2]} However, as appellant contends and the People concede, at no time did the court impose such a fine. Indeed, as the parties also agree, appellant was not subject to a section 1202.44 fine because he committed the instant offense in November 2003, prior to the enactment of section 12022.44. (People v. Callejas (2000) 85 Cal.App.4th 667 [fine imposed pursuant to statute enacted after commission of offense upon which fine is based violates constitutional ban on ex post facto laws].)

The abstract of judgment indicates appellant was ordered to pay a fine of $200 pursuant to section 1202.44. As demonstrated above, the abstract is in error. Accordingly, we will order the court to issue an amended abstract of judgment which corrects the error.

DISPOSITION

The superior court is directed to issue an amended abstract of judgment which omits all reference to a fine under section 1202.44. In all other respects, the judgment is affirmed.

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^*Before Wiseman, Acting P.J., Gomes, J., and Dawson, J.

^{^[1]} We use the term strike, in its noun form, as a synonym for prior felony conviction within the meaning of the three strikes law (Pen. Code, 667,
subds. (b)-(i) & 1170.12); i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.

^{^[2]} Section 1202.44 provides: In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record. Probation revocation restitution fines shall be deposited in the Restitution Fund in the State Treasury.

Description	In October 2004, appellant, Israel Romero, pled no contest to felony possession of PCP (Health & Saf. Code, 11377, subd. (a)), and admitted allegations that he had (1) suffered a strike and (2) served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)). In January 2005, the court struck the strike and placed appellant on probation. In May 2006, appellant suffered a conviction of misdemeanor driving a motor vehicle while under the influence of alcohol or drugs (Veh. Code, 23152, subd. (a)), and based on that conviction, and on appellants admission of an allegation that he violated his probation by not remaining in contact with the probation department, the court denied reinstatement on probation and imposed a prison term of three years. At sentencing, the court also stated, Ill lift the stay on the 1202.44 fine of $200, given the violation and the state prison sentence. The superior court is directed to issue an amended abstract of judgment which omits all reference to a fine under section 1202.44. In all other respects, the judgment is affirmed.
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