People v. Fox CA6

Filed 10/15/15 P. v. Fox CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040823 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS132175)

v.

LUSANNE MARIE FOX,

Defendant and Appellant.

Defendant Lusanne Marie Fox pleaded no contest to one count of welfare fraud. (Welf. & Inst. Code, § 10980, subd. (c)(2).) The trial court suspended imposition of sentence and granted a three-year term of probation with 110 days in county jail as a condition of probation. Among other things, the court imposed a $300 restitution fine and a $300 probation revocation restitution fine under Penal Code sections 1202.4 and 1202.44.1 The court also imposed probation conditions prohibiting defendant from using or possessing alcohol or controlled substances, and requiring her to submit to testing for alcohol and narcotics. On appeal, defendant challenges the restitution fines on the basis that the minimum restitution fine was $200 at the time of the offense. She contends imposition of

1 Subsequent undesignated statutory references are to the Penal Code.

the fines violated the prohibition on ex post facto laws, or alternatively, that her trial counsel provided ineffective assistance for failing to object to them. Second, defendant contends the trial court abused its discretion by imposing the alcohol- and drug-related probation conditions because they lacked any nexus to the offense or her future criminality. Consistent with our holding in People v. Martinez (2014) 226 Cal.App.4th 1169 (Martinez), we conclude trial counsel provided ineffective assistance by failing to object to the restitution fines. Furthermore, we conclude the trial court abused its discretion by imposing the alcohol-related probation conditions. However, we conclude the probation conditions concerning controlled substances were properly imposed. Accordingly, we will reduce the restitution fines to $200 and strike the alcohol- related language from the probation conditions. We will affirm the judgment as modified. I. FACTUAL AND PROCEDURAL BACKGROUND2 When defendant applied for public assistance in the Fall of 2009, she failed to report that her husband was employed. In subsequent quarterly status reports completed in 2009 and 2010, she failed to disclose all income the household had received. Defendant also forged her husband’s signature on the forms and reports. As a result of these misrepresentations, the Department of Social Services overpaid defendant $1,080 in food stamps and $2,037 in cash aid. The Department subsequently recovered $140 in food stamps, resulting in a total loss of $2,977. In 2013, the prosecution charged defendant by complaint with three counts: Count One—Aid by misrepresentation on or between November 1, 2009 and January 31, 2010 (Welf. & Inst. § 10980, subd. (c)(2)); Count Two—Perjury on or about October 7, 2009 (§ 118, subd. (a)); and Count Three—Perjury on or about January 4, 2010 (ibid.).