People v. Stallman CA5

Filed 9/3/14 P. v. Stallman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F067182 Plaintiff and Respondent, (Super. Ct. No. BF144438C) v.

RICHARD LEE STALLMAN, J.R., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. Alex Green, 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, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J. and Franson, J.

Defendant Richard Lee Stallman, Jr., was convicted by jury trial of receiving stolen property (Pen. Code, § 496, subd. (a)).1 On appeal, he contends defense counsel was ineffective for failing to raise an ex post facto objection to the trial court’s imposition of a $280 restitution fine pursuant to section 1202.4, subdivision (b). He asserts that the court’s reference to “the standard fines and fees” demonstrates that it intended to impose the minimum fine, which was $240 at the time he committed the crime in 2012 (§ 1202.4, subd. (b)).2 We disagree that the trial court clearly intended to impose the minimum fine. Accordingly, we affirm. DISCUSSION “Under the United States Constitution, ‘“‘any statute … which makes more burdensome the punishment for a crime, after its commission … is prohibited as ex post facto.’”’ [Citations.] The ex post facto clause of the state Constitution is in accord.” (People v. Saelee (1995) 35 Cal.App.4th 27, 30-31.) The prohibition against ex post facto laws applies to restitution fines, which constitute punishment. (People v. Souza (2012) 54 Cal.4th 90, 143.) An increase in the minimum restitution fine makes the authorized punishment more burdensome. (People v. Saelee, supra, at pp. 30-31.) Therefore, a court cannot apply an increased minimum restitution fine retroactively to a defendant whose crime occurred prior to the increase in the minimum restitution fine.

1 All statutory references are to the Penal Code unless otherwise noted. 2 Section 1202.4 provides in pertinent part: “(b) In 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. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000) ….”