P. v. Wilson

Filed 4/20/07 P. v. Wilson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Mark Arnold, Judge. Modified and, as modified, affirmed with directions.

Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Howard George Wilson appeals from the judgment entered following his plea of no contest to possession of marijuana for sale (Health & Saf. Code,  11359) with an admission that he suffered a prior felony conviction for which he served a separate prison term (Pen. Code,  667.5, subd. (b)), following the denial of a suppression motion (Pen. Code,  1538.5). The court lifted the stay of execution on appellants previously imposed sentence of two years four months in prison.

We accept respondents concession that the trial court erroneously imposed a Penal Code section 1202.45 parole revocation restitution fine.

FACTUAL SUMMARY

The record reflects that on August 25, 1993, appellant committed the above offense in Inglewood.

CONTENTION

Appellant claims that imposition of a Penal Code section 1202.45 parole revocation restitution fine violated the ex post facto clauses of the federal and state Constitutions.

DISCUSSION

Imposition of the Parole Revocation Restitution Fine Violated Ex Post Facto Principles.

On October 4, 1994, appellant, pursuant to a negotiated plea, pled no contest as indicated above. On October 27, 1994, the trial court sentenced appellant to prison for

two years four months, but stayed execution of sentence and released appellant on his own recognizance pending his appeal of the denial of the suppression motion.

The Legislature enacted Penal Code section 1202.45 in 1995. (People v. Callejas (2000) 85 Cal.App.4th 667, 669.) At the time, that section provided, In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of section 1202.4. This additional restitution fine shall be suspended unless the persons parole is revoked. In December 1995, appellant failed to appear in court and a bench warrant was issued for his arrest.

On May 8, 2006, appellant appeared in court pursuant to the warrant and, on May 9, 2006, the court effectively lifted the stay of execution on the previously imposed sentence. However, the court imposed a $400 parole revocation restitution fine pursuant to Penal Code section 1202.45.

Respondent concedes application of Penal Code section 1202.45, which was enacted in 1995, to appellants 1993 offense violates ex post facto principles. (People v.Callejas, supra, 85 Cal.App.4th at p. 669.) We accept the concession.

DISPOSITION

The judgment is modified by striking the $400 Penal Code section 1202.45 parole revocation restitution fine and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modification.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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