People v. Joseph CA3

Filed 4/3/15 P. v. Joseph CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sutter) ----

THE PEOPLE, C074168

Plaintiff and Respondent, (Super. Ct. No. CRF120234)

v.

TIMOTHY MICHAEL JOSEPH,

Defendant and Appellant.

In Sutter County case no. CRF120234, a jury found defendant Timothy Michael Joseph guilty of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), knowingly bringing a controlled substance into a county jail (Pen. Code, § 4573),1 misdemeanor resisting a peace officer (§ 148, subd. (a)(1)), misdemeanor possession of paraphernalia used to smoke a controlled substance (Health & Saf. Code, § 11364.1), and misdemeanor possession of marijuana in an amount exceeding 28.5 grams (Health & Saf.

1 Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.

1

Code, § 11357, subd. (c)). Defendant then admitted to committing a felony while released from custody. (§ 12022.1.) When defendant appeared for sentencing on his conviction in case No. CRF120234, he also pleaded no contest to the following: grand theft (§ 487, subd. (a)) in case No. CRF110836; willful failure to appear (§ 1320, subd. (b)) in case No. CRF122310; and felony dissuasion of a witness (§ 136.1, subd. (a)) in case No. CRF131039. The trial court dismissed numerous other pending misdemeanor cases2 and sentenced defendant to an aggregate term of five years eight months in state prison. The trial court also ordered defendant to pay numerous fines and fees. Regarding the mandatory restitution fines, the court said: “In each of these four cases, . . . the court is required to order a minimum of $280 in restitution fines, and I’m going to select that minimum amount, but that’s times four, so that’s a total of $1,120.” Defendant raised no objection. On appeal, defendant contends the trial court “violated [his] ex post facto rights when it imposed restitution fines enacted after the dates of the offenses of which he was convicted . . . .” He argues the restitution fines and parole revocation restitution fines should be reduced to the statutory minimum that was in effect at the time he committed those crimes. Specifically, defendant contends the fines in case No. CRF110836 should be reduced to $200, and the fines in case Nos. CRF120234 and CRF122310 should be reduced to $240. DISCUSSION A restitution fine is considered punishment for purposes of ex post facto analysis. (People v. Hanson (2000) 23 Cal.4th 355, 360-362; People v. Valenzuela (2009)