People v. Romo CA6

Filed 3/7/16 P. v. Romo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039998 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1236879)

v.

JOSE LUIS ROMO,

Defendant and Appellant.

THE COURT: Defendant Jose Luis Romo pleaded no contest to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4))1, admitted he had a prior conviction that qualified as a “strike” (§§ 667, subds. (b)-(i), 1170.12), and admitted he had served a prior prison term (§ 667.5, subd. (b)). The trial court imposed a six-year prison term and a $280 restitution fine (§ 1202.4, subd. (b)). On appeal, defendant contends the $280 restitution fine should be reduced by $40. Defendant contends the imposition of a $280 fine violates his rights under the ex post facto clauses of the state and federal constitutions, because the minimum restitution fine was $240 at the time of his offense, and the trial court indicated it intended to impose the

 Before Bamattre-Manoukian, Acting P.J., Mihara, J., and Grover, J. 1 All further statutory references are to the Penal Code unless otherwise indicated.

minimum fine at the sentencing hearing. Defendant also contends his trial counsel was constitutionally ineffective for failing to object to imposition of the $280 restitution fine. For reasons that we will explain, we will affirm the judgment.

I. BACKGROUND The facts underlying defendant’s offense are not relevant to the issue raised on appeal. The complaint alleged that the offense—assault by means of force likely to produce great bodily injury—occurred “[o]n or about and between July 15, 2012 and July 16, 2012.” Defendant pleaded no contest to the assault on October 5, 2012, and was sentenced on August 2, 2013. In 2012 (the year defendant committed the assault), section 1202.4, subdivision (b)(1) provided that the amount of a felony 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 . . . .” (Stats. 2011, ch. 358, § 1.) The probation report prepared in defendant’s case recommended the trial court impose a six-year prison term and a restitution fine of $1,440 “under the formula permitted by Penal Code Section 1202.4(b)(2).” The formula specified in section 1202.4, subdivision (b)(2) is “the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” The probation officer appears to have used the $240 minimum fine in effect at the time of defendant’s offense as the basis for this calculation, as $240 times six years equals $1,440. At defendant’s sentencing hearing, the trial court imposed the recommended six- year prison term. Defendant’s trial counsel requested the trial court impose “a more