People v. Michael CA3

Filed 8/25/15 P. v. Michael CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE, C078558

Plaintiff and Respondent, (Super. Ct. No. S13CRF0144)

v.

JORDAN JOSEPH MICHAEL,

Defendant and Appellant.

On August 25, 2014, defendant Jordan Joseph Michael pleaded no contest to assault by means of force likely to produce great bodily injury—an offense that occurred on June 28, 2013. (Pen. Code, § 245, subd. (a)(4).)1 He also admitted inflicting serious bodily injury. (§ 12022.7, subd. (a).) Defendant appeared for sentencing on January 23,

1 Undesignated statutory references are to the Penal Code.

1

2015, and was sentenced to six years in prison. Defendant’s sole contention on appeal is that the trial court’s imposition of a $300 restitution fine at sentencing violated ex post facto principles and must be reduced. We affirm. DISCUSSION At sentencing, the trial court imposed a $300 restitution fine pursuant to section 1202.4, subdivision (b)(1), which provides in relevant part: “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. If the person is convicted of a felony, the fine 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).” Restitution is imposed under the law applicable at the time of the offense, not at the time of sentencing. (People v. Souza (2012) 54 Cal.4th 90, 143.) Defendant argues that the imposition of the $300 restitution fine was a violation of the constitutional prohibition against ex post facto penalties and must be reduced to $280 to reflect the statutory minimum in effect at the time of his June 2013 offense. We disagree, as defendant forfeited any claim of error. The ex post facto clauses of both the federal and state Constitutions prohibit any statute that makes more burdensome the punishment for a crime after its commission. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 294-295.) “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.) At the time of defendant’s offense, section 1202.4 provided for a fine between $280 and $10,000, “at the discretion of the court and commensurate with the seriousness