People v. Lehmann CA3

Filed 10/15/14 P. v. Lehmann CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C073517

Plaintiff and Respondent, (Super. Ct. Nos. CM033057, CM037826) v.

JONATHAN ALEXANDER LEHMANN,

Defendant and Appellant.

In case No. CM037826 (No. 7826), defendant Jonathan Alexander Lehmann entered a no contest plea to battery with serious injury (Pen. Code, § 243, subd. (d); unless otherwise stated, statutory references that follow are to the Penal Code), and admitted a strike prior (§§ 667, subds. (b)-(i), 1170.12) in exchange for a stipulated eight- year state prison sentence and dismissal of the remaining counts and allegations in the complaint. Based on defendant’s plea, the court found defendant in violation of probation in case No. CM033057 (No. 3057), wherein defendant had entered a guilty plea

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to criminal threats. (§ 422.) The court sentenced defendant to state prison and imposed various fees and fines in both cases. Defendant appeals. He contends that the imposition of a $280 restitution fine and a corresponding parole revocation restitution fine in No. 7826 violates the ex post facto clauses in the state and federal constitutions. The People respond that the amount was within the court’s discretionary power and that defendant forfeited his argument by failing to object in the trial court. We requested supplemental briefing on the issue whether counsel rendered ineffective assistance in failing to object to the amount at the time of sentencing. Defendant and the People agree as do we that had defense counsel objected, there is a reasonable probability, indeed a certainty, that the trial court would have imposed the minimum fine of $240, not $280. We will modify the judgment, reducing the amount to $240, the minimum applicable fine under the law at the time of defendant’s offense.