People v. White CA3

Filed 6/16/14 P. v. White CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C073583

Plaintiff and Respondent, (Super. Ct. No. 12F7867)

v.

NICHOLAS ROBERT EUGENE WHITE,

Defendant and Appellant.

A jury convicted defendant Nicholas Robert Eugene White of evading an officer with disregard for public safety, a felony, in violation of Vehicle Code section 2800.2. The court convicted defendant of driving an unregistered vehicle, an infraction, and failure to provide evidence of financial responsibility, an infraction. The court sentenced defendant to state prison for the midterm of two years and imposed various fees and fines including a $600 restitution fine and an additional restitution fine (parole fine) in the same amount pursuant to Penal Code section 1202.45. (Unless stated otherwise, statutory citations that follow are to the Penal Code.)

1

Defendant appeals challenging the amount of the two fines. We affirm the judgment.

DISCUSSION

At sentencing, after imposing a two-year prison term, the court said, “You’re ordered to pay restitution fine in the amount of -- that would be different now. That would be what, $600?” The probation officer responded, “I’m sorry, Your Honor. Uhm, yes, it would be.” Without objection, the court imposed a $600 restitution fine and a corresponding parole fine in the same amount. When defendant committed his offense in 2012, the minimum restitution fine was $240 and the maximum fine was $10,000. (§ 1202.4, subd. (b)(1).) Defendant contends the record thus affirmatively reflects that the trial court misunderstood its discretion in imposing the restitution and parole fines and used $300 as the statutory minimum multiplied by two for the number of years in state prison imposed for the offense. As a result, defendant claims that the court imposed unauthorized fines which violated the ex post facto clause of the federal Constitution. He claims the fines should be reduced to $480, using the statutory minimum in effect at the time of his offense ($240) multiplied by two, or that the matter should be remanded for the trial court to reassess the fines. The People argue that defendant’s challenge to the restitution/parole fines is forfeited by his failure to raise his objection in the trial court. Citing People v. Zito (1992) 8 Cal.App.4th 736, defendant replies that his challenge is not forfeited by the failure to object because an error which violates ex post facto principles constitutes an unauthorized sentence which may be corrected at any time. (Id. at pp. 740-742.) An unauthorized sentence that may be challenged at any time is a sentence that “could not lawfully be imposed under any circumstance in the particular case.”