People v. Hill CA3

Filed 9/9/14 P. v. Hill CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY

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

THE PEOPLE, C074162

Plaintiff and Respondent, (Super. Ct. No. CM037702)

v.

BRIAN ANDREW HILL,

Defendant and Appellant.

Defendant Brian Andrew Hill pleaded no contest to second degree robbery. (Pen. Code, § 211; unless otherwise noted, statutory citations that follow are to the Penal Code.) The trial court imposed a five-year state prison sentence, suspended execution of sentence, and placed defendant on five years’ formal probation. Among the terms of probation were a $280 restitution fine (§ 1202.4, subd. (b)) and a $280 stayed probation revocation restitution fine (§ 1202.44).

1

After defendant later admitted to violating his probation, the trial court terminated probation, ordered execution of the five-year term, reimposed the $280 restitution fine, and ordered execution of the $280 probation revocation restitution fine. On appeal, defendant contends the $280 restitution and probation revocation restitution fines constitute an impermissible ex post facto punishment. The Attorney General contends the trial court erroneously failed to impose a parole revocation restitution fine when it ordered execution of the five-year term. We shall modify the restitution and probation revocation restitution fines, impose and stay execution of a parole revocation fine, and affirm the judgment as modified.

FACTS AND PROCEEDINGS

On October 17, 2012, defendant and two cohorts attacked one of defendant’s former roommates, William Johnson, as Johnson was trying to retrieve his belongings from defendant’s garage. The assailants handcuffed Johnson and repeatedly asked him to turn over his methadone pills. When Johnson said he did not have any, one of the assailants stuck him with a hypodermic needle filled with cleaning fluid. They continued to hit him for six to eight hours and threatened to bury him if he called law enforcement. The assailants eventually took Johnson’s cell phone, keys, and wallet and set him free. At sentencing after defendant entered a no contest plea to second degree robbery, the trial court suspended execution of a state prison term, placed defendant on probation, and said the following regarding fines: “I’m not going to impose any fines under 654 of the California Penal Code. There is going to be a restitution fine. That’s two hundred forty. Now is there any other type of fine I impose--a parole revocation fine since if they go to prison.” The probation officer interjected, “Actually we just impose the 1202.45, that would be the probation revocation, then impose 1245 if they violate.” The court replied, “Two hundred forty,” and the probation officer said, “I believe it’s two eighty right now, Your Honor.” The trial court continued, “It’s not two forty--they keep