People v. Cobian CA6

Filed 12/18/13 P. v. Cobian CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039213 (San Benito County Plaintiff and Respondent, Super. Ct. No. CR1100642)

v.

RICARDO COBIAN,

Defendant and Appellant.

Defendant Ricardo Cobian appeals from a conviction for dissuading a victim from reporting a crime. On appeal, he contends that the trial court imposed a restitution fine in violation of the ex post facto clause of the United States Constitution. We will affirm. FACTUAL AND PROCEDURAL HISTORY1 D.L. testified that defendant repeatedly raped her from the time she was seven years old to the time she was 12 years old. During the summer of 2010, when D.L. was 14 years old, defendant told D.L. “not to say anything.” He warned her “that if anything happens to him something bad will happen to [her].”

1 Given that the facts and procedural history of the case are largely irrelevant to the issue presented on appeal, we include only an abbreviated factual and procedural summary.

A jury convicted defendant of dissuading a victim from reporting a crime (Pen. Code, § 136.1, subd. (b)(1)).2 The trial court sentenced defendant to the upper term of three years in prison, and it imposed a restitution fine of $240. Defendant filed a timely notice of appeal. This appeal followed. DISCUSSION Defendant argues that his restitution fine must be reduced because it was imposed in violation of the ex post facto clause of the United States Constitution. Specifically, he contends that the ex post facto clause required the trial court to impose a restitution fine pursuant to the version of section 1202.4 in effect at the time he committed his offense, and that the trial court erroneously imposed the restitution fine pursuant to the current version of section 1202.4. As explained below, we find no support in the record for defendant’s assertion that the trial court applied the current version of section 1202.4, and we accordingly conclude that there was no ex post facto violation.3 We therefore will affirm. Background The probation report, dated November 28, 2012, recommended a “restitution fund fine in the amount of $240.00 (1202.4(b) P.C.).” The probation report provided no information regarding the manner in which the recommended fine was calculated. At the sentencing hearing on January 11, 2013, the trial court imposed a restitution fine of $240 pursuant to section 1202.4, subdivision (b). The trial court did not state its reasoning for selecting the amount of $240.