Filed
8/6/13 P. v. Leyva CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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,
v.
ALEXANDER LEYVA,
Defendant and
Appellant.
F064921
(Super.
Ct. No. BF139004C)
THE COURT
APPEAL
from a judgment of the Superior Court of
John L.
Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice
Su, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On April 10, 2012, a jury found
Alexander Leyva (appellant) guilty of possession
of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and
not guilty of participation in a criminal street gang (Pen. Code,
§ 186.22, subd. (a)).
name="_ftnref2" title="">[1] In a bifurcated proceeding, the trial court
found true allegations that appellant had a prior serious felony conviction
within the meaning of the three strikes law (§§ 667, subds. (c)–(j);
1170.12, subds. (a)-(e)) and a prior prison term enhancement (§ 667.5,
subd. (b)).
On May 8, 2012, the trial court
struck the prior prison term enhancement and sentenced appellant to the low
term of 16 months, doubled to 32 months pursuant to the three strikes law. The court imposed a restitution fine pursuant
to section 1202.4, subdivision (b) of $240 and a suspended fine of the same amount
pursuant to section 1202.45.
On January 1, 2012, an amendment to
section 1202.4, subdivision (b) by the Legislature became operative and
increased the minimum restitution fine from $200 to $240. Appellant contends, and respondent concedes,
that his offense occurred prior to the operative date of the amendment and
therefore imposition of the increased fine constitutes a violation of the
and California Constitutions. We agree
and will reverse the trial court’s restitution fine.
DISCUSSION
An
amendment to section 1202.4, subdivision (b) was passed as urgency legislation
on July 1, 2011, and set the minimum restitution fine at $240 to become
operative on January 1, 2012. (Stats.
2011, ch. 45, § 1, p. 1830, eff. July 1, 2011; Stats. 2011, ch. 358,
§ 1, p. 3759.) Appellant’s offense
occurred on October 17, 2011, prior to the operative date of the statutory
amendment.
Under ex
post facto principles, the amount of a fine is determined as of the date of the
offense. (See People v. Saelee (1995) 35 Cal.App.4th 27, 30.) In this case, the trial court erred in
imposing $240 fines pursuant to sections 1202.4, subdivision (b) and
1202.45. The fines must be reduced to
$200 in accordance with the provisions of statutes in effect at the time
appellant committed the offense.
DISPOSITION
The trial
court’s restitution fine is vacated and the judgment is modified to reduce the
fine imposed pursuant to section 1202.4, subdivision (b) to $200 and to set the
stayed fine pursuant to section 1202.45 in the same amount. The trial court is directed to amend the
abstract of judgment accordingly and to send a certified copy of it to the
appropriate authorities. In all other
respects, the judgment is affirmed.
name="_ftn1" title="">* Before Gomes, Acting P.J., Kane, J.,
and Detjen, J.
name="_ftn2" title="">[1] All
further statutory references are to the Penal Code.
