People v. Damian CA5

Filed 2/27/15 P. v. Damian 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F068366 Plaintiff and Respondent, (Super. Ct. Nos. MF10355B, v. MF10492A, MF10632A, MF10633A )

ANTHONY STEPHEN DAMIAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Judge. John L. Staley, 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 Levy, Acting P.J., Kane, J. and Poochigian, J.

After being charged with numerous crimes in four cases, defendant Anthony Stephen Damian was sentenced on September 25, 2013, to a total of six years eight months according to a plea agreement. On appeal, he contends (1) the trial court imposed an unauthorized sentence and violated ex post facto principles when it imposed a restitution fine in the amount of $280 pursuant to Penal Code section 1202.4, subdivision (b),1 and (2) the trial court improperly ordered victim restitution pursuant to section 1202.4, subdivision (f) in an amount to be determined by the probation department. We affirm. DISCUSSION I. Restitution Fines Defendant contends that the trial court erred by imposing a $280 restitution fine in two of his four cases because he committed the crimes charged in those two cases when section 1202.4 allowed for a minimum fine of $240, not $280.2 He asserts that the court intended to impose the minimum fine because it imposed the current minimum of $280. 3 We disagree that the fine was unauthorized or that the trial court clearly intended to impose the minimum fine, and we conclude defendant nevertheless has forfeited his claim. “Under the United States Constitution, ‘“‘any statute … which makes more burdensome the punishment for a crime, after its commission … is prohibited as ex post

1 All statutory references are to the Penal Code. 2 The two cases that are the subject of this issue are MF010355B and MF010492A. 3 In 2012, when defendant allegedly committed the crimes in these two cases, section 1202.4 provided 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, but 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) ….” (§ 1202.4, subd. (b)(1), as amended by Stats. 2011, ch. 45, § 1.)