P. v. Whitfield

Filed 3/21/06 P. v. Whitfield CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

The only issue in this appeal is whether the constitutional ban on ex post facto laws (U.S. Const., art. I, § 10, cl. 1, Cal Const., art. I, § 9) prohibits imposing a probation revocation fine on a defendant who committed the underlying offenses before the fine was enacted. For the following reasons, we hold that under the circumstances of this case, the imposition of a probation revocation fine (Pen. Code, § 1202.44) violates ex post facto principles.

Facts and Proceedings Below

Following a jury trial, appellant was found guilty of one felony count of possession of methamphetamine for sale (Health & Saf. Code, § 11378), one felony count of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and one misdemeanor count of possession of marijuana (Health & Saf. Code, § 11357, subd. (b)).[1]

At appellant's sentencing hearing, the trial court placed appellant on probation for five years. The conditions of appellant's probation included a 12-month jail sentence with credit for time served of 331 days and a restitution fine of $220 (Pen. Code, § 1202.4). The court imposed and suspended a "probation revocation restitution fine" in the same amount as the restitution fine (Pen. Code, § 1202.44).[2]

Appellant filed a timely notice of appeal. On appeal, appellant contends that the court erred in imposing a suspended "probation restitution fine pursuant to Penal Code section 1202.44 because the constitutional ban on ex post facto laws forbids imposing such a fine on a defendant who committed the underlying offense before the fine was enacted." For the reasons outlined below, we agree. We will modify the judgment accordingly.

Discussion

In a case where a court grants probation, Penal Code section 1202.44 requires a trial court impose a probation-revocation fine when it imposes a restitution fine.[3] The statute went into effect on August 16, 2004 (Stats. 2004, ch. 223, § 3, pp. 1953, 1947). Appellant committed the offenses in question on September 11, 2003.

Initially, we note that we interpret the ex post facto clause in the California Constitution no differently than its federal counterpart. (People v. Snook (1997) 16 Cal.4th 1210, 1220.) The ex post facto clauses of the federal and state Constitutions prohibit the imposition of increased punishment after the commission of a crime. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9; Collins v. Youngblood (1990) 497 U.S. 37, 41; Tapia v. Superior Court (1991) 53 Cal.3d 282, 288.) As our Supreme Court explained in In re Ramirez (1985) 39 Cal.3d 931, "the policy behind the ex post facto clauses" is "that criminal laws must give fair warning to those who may fall within their ambit." (Id. at p. 938, citing Weaver v. Graham (1981) 450 U.S. 24, 28 (Weaver).) Hence, "one of the primary purposes of the ex post facto clause" is "to prevent unforeseeable punishment." (People v. Snook, supra, 16 Cal.4th at p. 1221.) "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." (Weaver, supra, 450 U.S. at p. 30.)

"[N]o statute falls within the ex post facto prohibition unless 'two critical elements' exist. [Citations.] First, the law must be retroactive." (John L. v. Superior Court (2004) 33 Cal.4th 158, 172.) "[T]he operative event for retroactivity purposes, and the necessary reference point for ex post facto analysis, is criminal conduct committed before the disputed law took effect." (Ibid.) "Second, only certain changes in the statutory effect of past criminal conduct implicate ex post facto concerns." (Ibid.)

As to the first element, a law is unconstitutionally retroactive "if it defines past conduct as a crime, increases the punishment for such conduct, or eliminates a defense to a criminal charge based on such conduct." (Tapia v. Superior Court, supra, 53 Cal.3d at p. 288.)

As to the second element, to implicate ex post facto concerns, the statutory change "must disadvantage the offender affected by it." [Citations.] (Weaver, supra, 450 U.S. at p. 29, fn. omitted.) One such constitutionally impermissible disadvantage occurs when the new statute imposes a greater quantum of punishment than that "assigned by law when the act to be punished occurred." (Id. at p. 30.) Accordingly, the proper inquiry is whether the probation revocation fine makes appellant's punishment more burdensome. (People v. McVickers (1992) 4 Cal.4th 81, 84.)

Relying on People v. Callejas (2000) 85 Cal.App.4th 667 (Callejas), appellant argues that the probation revocation fine qualifies as punishment. He argues that the fine increases the penalty for his offenses beyond that which existed at the time he committed those offenses.

In Callejas, the defendant pleaded no contest to driving while having a blood-alcohol level of .20 or higher. The trial court suspended imposition of sentence and placed Callejas on supervised probation for three years. In addition, the trial court imposed a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b). Subsequently, the court revoked Callejas's probation and sentenced him to two years in state prison. As part of the sentence, the court imposed and stayed a parole revocation fine pursuant to section 1202.45,[4] which was enacted two years after Callejas committed the underlying offense. (Callejas, supra, 85 Cal.App.4th at p. 669.)

On appeal, the Second District Court of Appeal ruled that the imposition of the parole revocation fine pursuant to section 1202.45 violated the constitutional prohibition against ex post facto laws. The court reasoned that although the purpose of a restitution fine is "ameliorative," and "not punitive," the "consequences to the defendant are severe enough that it qualifies as punishment for purposes of the ex post facto clause." (Callejas, supra, 85 Cal.App.4th at p. 670.)

Appellant contends that the legislative intent behind section 1202.44 was to constitute punishment. He points out that the plain language of section 1202.44 provides that a probation revocation restitution fine must be assessed in every case in which a person is convicted of a crime. Furthermore, the fine cannot be waived absent compelling and extraordinary reasons.

In analyzing whether a statute involves "punishment" for ex post facto purposes our Supreme Court has held that two factors appear important: "whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature's contrary intent." (People v. Castellanos (1999) 21 Cal.4th 785, 795.)

As our Supreme Court stated in People v. Walker (1991) 54 Cal.3d 1013 (Walker), "[a]lthough the purpose of a restitution fine is not punitive, we believe its consequences to the defendant are severe enough that it qualifies as punishment . . . ." (Id. at p. 1024.) Although Walker considered the issue in a different context, that is in respect to violation of a plea bargain, we believe the same analysis applies.

Section 1202.44 increases the penalty for which appellant is eligible beyond that which existed at the time he committed his offenses because at the time he committed those offenses the probation revocation fine did not exist. "[T]here is little dispute that . . . extra fines are punishment. [Citation.]" (People v. McVickers, supra, 4 Cal.4th at p. 84.) Notwithstanding the People's characterization of the fine as "modest," appellant is subject to an extra fine.

The People argue that "appellant accepted probation in lieu of accepting a sentence. Had he decided to undergo sentence, he necessarily would have been subject to the parallel and earlier enacted parole revocation fine of . . . section 1202.45. Appellant opted for leniency which encompassed a modest consequence in the event of his failure on probation, one directly parallel to the consequences that inevitably would have been imposed upon him had he chosen to undergo sentence only to then fail on parole."

We disagree. Appellant did not choose probation over sentencing. In this case, a jury found appellant guilty. Thus, pursuant to section 1203 the court referred the case to the "probation officer to investigate and report to the court . . . upon the circumstances surrounding the crime and the prior history and record of [appellant] . . . ." (§ 1203, subd. (b)(1).) Accordingly, pursuant to section 1203, subdivision (b)(2)(A), the probation officer prepared a report "including . . . her recommendations as to the granting or denying of probation and the conditions of probation, if granted." Then, in this case, the court determined that it would "go with the [recommendations in ] the probation report," which included a recommendation that appellant be granted probation. This was not a case where appellant pleaded guilty or no contest as part of a plea bargain. Therefore, there was no "negotiated plea agreement, which results in the waiver of important constitutional rights." (People v. Panizzon (1996) 13 Cal.4th 68, 79.)

We note that a "sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and what conditions should be imposed. [Citations.] Some probation conditions--particularly those involving confinement in county jail or payment of restitution and other fines and costs--are statutorily mandated or recommended in certain cases. [Citations.]" (People v. Welch (1993) 5 Cal.4th 228, 233.)

We point out, however that, "[i]t is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal. [Citations.] No different rule should generally apply to probation conditions under consideration at the same time. [Fn. omitted.] A timely objection allows the court to modify or delete an allegedly unreasonable [or in this case unconstitutional] condition or to explain why it is necessary in the particular case." (People v. Welch, supra, 5 Cal.4th at pp. 234-235.) "A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis. [Citations.]" (Ibid.)

Nevertheless, citing People v. Welch, supra, 5 Cal.4th at page 235, appellant argues that he never waived his present contentions at sentencing because his ex post facto claims present " 'pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.' " Further, citing People v. Scott (1994) 9 Cal.4th 331, 354, he argues that the waiver rule does not apply to claims that the sentence was unauthorized.

"Although the cases are varied, a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstances in the particular case." (People v. Scott, supra, 9 Cal.4th at p. 354.) Since imposition of the probation revocation fine in this case violates ex post facto principles, we find this to be such a case.

Accordingly, because the imposition of the probation revocation fine is an ex post facto increase in the punishment for appellant's offenses, we will modify the judgment accordingly.

Dispostion

The judgment is modified by striking the probation revocation fine under section 1202.44. As so modified, the judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] The facts underlying appellant's offenses are not relevant to this appeal.

[2] The court imposed various other conditions of probation not relevant here.

[3] Penal Code section 1202.44 states: " 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."

[4] Unless noted, all undesignated section references are to the Penal Code.