P. v. Barajas CA6

Filed 7/11/13 P. v. Barajas CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H037848 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1082324)

v.

ELISEO BARAJAS,

Defendant and Appellant.

Defendant Eliseo Barajas was convicted of infliction of corporal injury on the mother of his children. On appeal, defendant contends that the trial court’s calculation of the restitution fine violated the prohibition against ex post facto laws, and he therefore requests that we reduce the restitution fine and the corresponding parole revocation fine. As set forth below, we will modify the restitution and parole revocation fines and affirm the judgment as modified. FACTUAL AND PROCEDURAL HISTORY On April 19, 2010, defendant argued with Antonia Contreras, the mother of his two children. Defendant choked Ms. Contreras for 10 seconds. Police officers arrived at the scene, and they saw red marks on Ms. Contreras’s neck.

On July 14, 2011, defendant pleaded no contest to one count of infliction of corporal injury on the mother of his children (Pen. Code, § 273.5 subd. (a)).1 Pursuant to the plea agreement, defendant was to be placed on probation. The plea agreement was conditioned on defendant’s appearance in court for the sentencing hearing. On September 7, 2011, defendant failed to appear for sentencing. The trial court issued a bench warrant. Defendant appeared in court on November 18, 2011. The court informed defendant that the plea agreement was void due to his failure to appear for sentencing. On January 13, 2012, the court sentenced defendant to two years in prison. After imposing the sentence, the court stated, “You’ll pay a restitution fine of $720 under the formula as updated on January 1st under Penal Code section 1202.4(B).” The probation officer assigned to the case stated, “Your Honor, I’m sorry. I believe that’s based on date of the offense.” The court responded, “It’s actually not. We’ve been around a couple times with it. It is on date of sentencing.” The court thereafter imposed a restitution fine of $720. The court also imposed a $600 parole revocation fine pursuant to section 1202.45. Defendant filed a notice of appeal on January 20, 2012. His timely appeal followed. DISCUSSION Defendant argues that the trial court’s calculation of the restitution fine based on the January 2012 version of section 1202.4 constituted a violation of the prohibition against ex post facto laws, and that the trial court was required to calculate the restitution fine based on the version of section 1202.4 in effect at the time he committed the charged offense. Defendant contends that application of the appropriate version of section 1202.4