P. v. Romer
Filed 2/28/07 P. v. Romer CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sutter)
----
THE PEOPLE, Plaintiff and Respondent, v. ANDREW HEINRICK ROMER, Defendant and Appellant. | C052151 (Super. Ct. Nos. CRF041198, CRF041455) |
Defendant Andrew Heinrick Romer admitted he twice kicked a cat into the air, and pled guilty to two counts of felony cruelty to animals (Pen. Code, 597, subd. (b)), one each in case Nos. CRF04-1198, and CRF04-1455, respectively. The court sentenced defendant to time served, placed him on formal probation, and ordered him to pay (among other things) a $200 stayed probation revocation restitution fine pursuant to Penal Code section 1202.44, and a $35 restitution collection fee pursuant to Penal Code section 1202.4.
On appeal, defendant first contends the probation revocation restitution fine imposed under section 1202.44 must be stricken on ex post facto grounds. The People concede the point and we agree. Both offenses were committed in May 2004. Section 1202.44 became effective on August 16, 2004. (Stats. 2004, ch. 223, 3.) The statute cannot constitutionally be applied to conduct that occurred prior to that date. (Cf. People v. Callejas (2000) 85 Cal.App.4th 667, 670-678.)
We note that the courts imposition of the probation revocation restitution fine appears in the reporters transcript and clerks minutes of the sentencing proceedings, but not in the subsequent judgment and order granting probation. Therefore, no modification of the judgment is required.
Defendant also contends the court miscalculated the restitution collection fee; the People agree. Penal Code section 1202.4, subdivision (l), authorizes the board of supervisors of any county [to] impose a fee to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the restitution fine . . . . Ten percent of $200, the amount of restitution fee ordered in each case, is $20, not the $35 ordered by the court. As the parties ask, we shall reduce the restitution collection fee to $20. Because the judgment includes no reference to the courts imposition of the restitution collection fee, we shall order it modified.
DISPOSITION
The probation revocation restitution fine imposed pursuant to Penal Code section 1202.44 is stricken. The judgment shall be modified to reflect the imposition of a restitution collection fee imposed pursuant to Penal Code section 1202.4, subdivision (l), in the amount of $20. In all other respects, the judgment is affirmed.
SIMS , Acting P.J.
We concur:
BUTZ , J.
CANTIL-SAKAUYE , J.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
