People v. Taylor CA3

Filed 9/23/14 P. v. Taylor CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE, C074534

Plaintiff and Respondent, (Super. Ct. No. 12F03070)

v.

PAUL EDWIN TAYLOR,

Defendant and Appellant.

Defendant Paul Edwin Taylor pleaded guilty to robbery and admitted enhancements for personal use of a firearm and great bodily injury upon a disabled victim.1 He was sentenced to 18 years in state prison. As part of his sentence, he was ordered to pay restitution and parole revocation fines of $280, which he contends violate federal ex post facto principles because they exceed the minimum applicable statutory

1 We dispense with a recitation of the underlying facts of defendant’s crime as they are unnecessary to the disposition of this appeal.

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fines at the time he committed the robbery. On the instant record, we find no violation, but as defendant has raised a meritorious ineffective assistance claim based on defense counsel’s failure to object to the imposed fines, we conditionally reduce the restitution and parole revocation fines to $240 each. As to defendant’s further contention that the abstract of judgment erroneously reflects a fine pursuant to Penal Code section 1202.52 that was not actually imposed by the trial court, we agree and order the abstract of judgment corrected.

DISCUSSION

“A restitution fine qualifies as punishment for purposes of the prohibition against ex post facto laws.” (People v. Saelee (1995) 35 Cal.App.4th 27, 30.) Thus, the applicable minimum amount of a restitution fine to be assessed is calculated as of the date of the offense. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.) Here, the minimum statutory restitution fine in effect at the time defendant committed the robbery in 2012 was $240 (not $280, which was the minimum in effect at the time defendant was sentenced in 2013), and the parole revocation fine was statutorily required to be imposed in an equal amount. (§§ 1202.4, subd. (b)(1), 1202.45, subd. (a).) While defense counsel asked for minimum fines and fees based on defendant’s indigence, and the trial court reduced some fines to their minimums based on defendant’s inability to pay, the court did not expressly state an intent to impose the minimum authorized restitution and parole revocation fines. Thus, it is not clear from the record whether the trial court imposed the $280 fines as the “minimum” statutory fines or merely as fines within the acceptable statutory range. On this record, defendant has not established a violation of the constitutional prohibition against ex post facto laws.