People v. Sosa CA5

California Court of Appeal Jul 31, 2014 No. F066824Unpublished

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Holding. The court held that the trial court violated the ex post facto clause by imposing fines and penalty assessments that were enacted or increased after the defendant's offense occurred. Consequently, the court ordered the DNA assessments stricken and reduced the other fines and penalties to the amounts applicable at the time of the offense.

Issues

Whether the imposition of fines and penalty assessments enacted after the commission of the offense violated the ex post facto clause.
Whether the trial court erred in calculating the specific amounts of fines and assessments imposed on the defendant.

Disposition. remanded

Quotations verified verbatim against the opinion

“When the prosecutor fails to conclusively prove that the offense occurred after the effective date of the applicable statute, applying the sentencing provisions of the offense based on later enacted statutes violates the prohibition against the ex post facto application of law.”

“Imposition of these fines for an offense that occurred prior to the operative date of the law violates the ex post facto clause.”

Filed 7/31/14 P. v. Sosa CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F066824

Plaintiff and Respondent, (Super. Ct. No. 11CM8651)

v. OPINION JIMMY WILLIAM SOSA,

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P.J., Franson, J., and Peña, J.

INTRODUCTION On October 23, 2012, Jimmy William Sosa, appellant, waived his constitutional rights and pled no contest to one count that he committed a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a), count 2)1 and misdemeanor possession of a firearm with the identification altered or removed (§ 23920, count 6). According to the first amended information, count 2 occurred sometime between April 14, 2004, and April 13, 2007.2 Evidence from the preliminary hearing indicates count 2 occurred when the victim was seven or eight years old, between April 14, 2004, and April 13, 2006. Appellant was sentenced to prison for the midterm of six years on count 2 and to a concurrent term of six months on count 6. The court also imposed a series of fines, fees, and other assessments as follows: $300 penal fine (§ 290.3), $300 state penalty assessment (§ 1464), $60 state surcharge (§ 1465.7), $200 county penalty assessment (Gov. Code, § 76000), $150 court construction penalty (Gov. Code, § 70372), $30 DNA funding assessment (Gov. Code, § 76104.6), and a second $90 DNA funding assessment (Gov. Code, § 76104.7).3 Appellant contends that these fees either have to be reduced, or stricken, because they were at lower amounts or had not yet been enacted when he committed his offense. Respondent concedes error.

People v. Sosa CA5

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THE PEOPLE, F066824

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