People v. Moreno CA6

Filed 12/16/13 P. v. Moreno CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039087 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS111435)

v.

FERNANDO MORENO,

Defendant and Appellant.

Defendant Fernando Moreno pleaded guilty to possession of a weapon by a prisoner. (Pen. Code, § 4502, subd. (a).)1 Moreno admitted two prior strike convictions, and the trial court sentenced him to an indeterminate term of 25 years to life pursuant to the Three Strikes law. The court also imposed what it referred to as “the minimum Restitution Fund fine of $240” pursuant to section 1202.4, subdivision (b)(1), and a $240 parole revocation fine pursuant to section 1202.45. On appeal, Moreno contends the trial court erred by imposing restitution and parole fines in the amount of $240 because the minimum fine at the time he was sentenced was $200. Moreno also maintains that he is entitled to automatic resentencing under Proposition 36, a voter initiative passed after he was sentenced that enacted the Three Strikes Reform Act of 2012 (The Reform Act). The government concedes the former point but not the latter. We affirm the judgment as modified herein.

1 Further unspecified statutory references are to the Penal Code.

I. FACTUAL AND PROCEDURAL BACKGROUND Defense counsel stipulated that on January 30, 2011, “Mr. Moreno, while housed in a California penal institution, was in possession of a sharp instrument and without lawful purpose.” On October 10, 2012, Moreno pleaded guilty to possession of a weapon by a prisoner and to having two or more prior serious and/or violent felony convictions. The trial court imposed a sentence of 25 years to life pursuant to section 1170.12, subdivision (c)(2), the Three Strikes law. The court also imposed a restitution fine of $240 and a parole revocation fine in the same amount. At the sentencing hearing, the court indicated that it was imposing “the minimum Restitution Fund fine of $240.” II. DISCUSSION A. Restitution and Parole Revocation Fines Moreno argues, and the government concedes, that the restitution and parole revocation fines the court imposed must be reduced to avoid running afoul of the prohibition against ex post facto laws. Section 1202.4, subdivision (b), provides that, “[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” At the time of Moreno’s offense on January 30, 2011, the minimum restitution fine was $200. (Former § 1202.4; Stats. 2009, ch. 45, § 1.) The minimum restitution fine increased to $240 on January 1, 2012. (§ 1202.4, subd. (b)(1).) Applying a later version of section 1202.4 constitutes an error and an ex post facto violation. (See People v. Saelee (1995) 35 Cal.App.4th 27, 30 [“A restitution fine qualifies as punishment for purposes of the prohibition against ex post facto laws.”].) At sentencing, the court stated that it was imposing “the minimum Restitution Fund fine,” but it imposed a fine of $240, $40 over the applicable minimum. Like the parties, we conclude from our review of the record that the trial court intended to impose