PEOPLE v. MARGARITO

Filed 6/27/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

The only issue on appeal is whether the constitutional ban on ex post facto laws prohibits the imposition of probation conditions pursuant to Penal Code[1] section 1203.097, governing cases involving domestic violence, where the underlying offenses were committed before the statute was enacted. We hold that application of section 1203.097 in this case violates ex post facto principles. We vacate the sentence and remand for resentencing.

I.

BACKGROUND

On January 4, 1993, defendant Margarito Martinez Delgado was charged with three offenses committed on January 3, 1993: count one, attempted unlawful sexual intercourse (§§ 664, 261, subd. (2)); count two, sexual battery (§ 243.4, subd. (a)); and count three, felony false imprisonment (§ 236).[2] Defendant entered a plea of not guilty at his arraignment on January 5, 1993. Defendant then failed to appear at his next hearing. A bench warrant was issued, but defendant remained at large for the next 12 years.

On March 10, 2005, defendant was again arraigned and again entered a plea of not guilty to all three counts. A first amended complaint was filed on March 16, 2005, which realleged the previous three counts, and added an additional offense committed on January 3, 1993: count four, infliction of corporal injury upon a spouse or cohabitant (§ 273.5, subd. (a)). A new complaint was also filed that same day, alleging defendant violated section 1320, subdivision (b), by failing to appear in court.

Defendant pleaded guilty to counts three (felony false imprisonment) and four (corporal injury to spouse or cohabitant) of the amended complaint. He also pleaded guilty to the single count in the new complaint for violating section 1320, subdivision (b). Counts 1 and 2 were dismissed with a Harvey[3] waiver.

On April 13, 2005, imposition of sentence was suspended on counts three and four, and defendant was placed on probation pursuant to section 1203.097.[4] The conditions of probation included, inter alia, (1) 36 months of supervised probation; (2) 40 hours of community service work; and (3) a domestic violence payment of $400. Defense counsel argued that defendant could not be sentenced under section 1203.097 because the underlying offenses occurred before the effective date of that statute. Section 1203.097 was enacted on September 21, 1994. (Stats. 1993-1994, 1st Ex. Sess., ch. 28, § 4, p. 8615.) Defendant committed the offenses in question on January 3, 1993. At the time, a person convicted of violating former section 273.5 was subject to punishment by â€