People v. Fouts CA3

Filed 4/24/15 P. v. Fouts CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE,

Plaintiff and Respondent, C076417

v. (Super. Ct. No. SF121038A)

BRYAN MICHAEL FOUTS,

Defendant and Appellant.

Defendant Bryan Michael Fouts pleaded guilty to voluntary manslaughter, unlawful driving or taking of a vehicle, and receiving stolen property. At the time defendant committed his offenses, the statutory minimum restitution fine was $240, but when he was sentenced the minimum was $300. Defendant now contends the trial court violated ex post facto principles in imposing the restitution fine and parole revocation fine, because the trial court intended to impose the statutory minimum but used the minimum in effect at the time of sentencing, not at the time he committed his offenses.

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Defendant further argues that if his trial counsel’s failure to object in the trial court forfeited his claim, the failure amounted to ineffective assistance of counsel. The Attorney General argues defendant’s contention is forfeited, but agrees trial counsel’s failure to object constituted ineffective assistance and that this court should reduce the restitution and parole revocation fines to $240. We agree with the Attorney General. We will modify the judgment to reflect a $240 restitution fine and a $240 parole revocation fine, and we will affirm the judgment as modified. BACKGROUND Given defendant’s appellate contentions, a detailed recitation of the underlying facts is unnecessary. An information charged defendant with committing a number of offenses in 2012, including the murder of Keith Sutton (Pen. Code, § 187, subd. (a) -- count 1),1 assault with a firearm (§ 245, subd. (a)(2) -- count 2), possession of a firearm by a convicted felon (§ 29800, subd. (a)(1) -- count 3), discharging a firearm in a grossly negligent manner (§ 246.3 -- count 4), possession of a firearm by a convicted felon (§ 29800, subd. (a)(1) -- count 5), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a) -- count 6), one count of receiving stolen property (a motor vehicle) (§ 496d, subd. (a) -- count 7), three counts of receiving stolen property (§ 496, subd. (a) -- counts 8 through 10), and misdemeanor giving false identification to a peace officer (§ 148.9, subd. (a) -- count 11). As to count 1, the information alleged defendant had premeditated and deliberated (§ 189), personally discharged a firearm (§ 12022.53, subd. (d)), and personally used a firearm (§ 12022.5, subd. (a)). As to count 2, the information alleged defendant personally used a firearm. (§ 12022.5, subd. (a).) As to counts 1 and 2, the information alleged defendant had sustained two prior serious