People v. White

Opinion

HUFFMAN, J.

In September 1991, as part of a plea bargain, Moses White, Jr., pled guilty to continuous sexual abuse of a child in violation of Penal Code

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section 288.5, subdivision (a). He was sentenced to 16 years in prison with the execution of the sentence stayed pending a 5-year grant of probation.

In July 1995 White’s probation was revoked and he was resentenced by stipulation to the middle term of 12 years. The court imposed a $100

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restitution fíne and ordered $789.66 in direct restitution to the victim. Both the fine and restitution ordered were to be paid from prison wages pursuant to section 2085.5.

White has appealed. His appeal does not challenge his plea, the probation revocation, the sentence imposed or the amounts of the fine and restitution order. Remarkably, this appeal challenges, on constitutional grounds, the portion of the sentence which requires that the $789.66 be paid out of prison wages. The collection procedure, White argues, violates the prohibition against ex post facto legislation. We will find no violation and affirm.

Discussion

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At the time of the offense in this case White was subject to a restitution fine of up to $10,000. He was also subject to payment of direct restitution to the victim. (See Gov. Code, § 13967, as amended by Stats. 1986, ch. 1438, § 1, pp. 5140-5141, eff. Jan. 1, 1987.) At the time of the original sentencing, however, section 2085.5 only authorized the Director of Corrections to deduct restitution fines from prison wages.

In 1994, amendments to sections 1202.4 (Stats. 1994, ch. 1106, § 3) and 2085.5, subdivision (b) (Stats. 1994, ch. 634, § 1), permitted the director to also deduct direct restitution payments from prison wages.

White contends, for the first time on appeal, that the change in the law permitting deduction of restitution payments from his prison wages violates the ex post facto provisions of both the state and federal Constitutions. We disagree.